LIBRARY 
 
 UMVERSItY OF 
 CALIFORNIA 
 
 SAM waoo 

 
 THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 Comparative Legal Philosophy
 
 THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 Edited by a Committee of the 
 ASSOCIATION OF AMERICAN LAW SCHOOLS 
 
 INTRODUCTION TO THE SCIENCE OF LAW. By KARL 
 GAREIS of the University of Munich. Translated by ALBERT 
 KOCOUREK of Northwestern University. 
 
 THE WORLD'S LEGAL PHILOSOPHIES. By FRITZ BEROLZ- 
 HEIMER of Berlin. Translated by RACHEL S. JASTROW. 
 
 COMPARATIVE LEGAL PHILOSOPHY, applied to Legal 
 Institutions. By LUIGI MIRAGLIA of the University of 
 Naples. Translated by JOHN LISLE of the Philadelphia Bar. 
 
 GENERAL THEORY OF LAW. By N. M. KORKUNOV of the 
 University of St. Petersburg. Translated by W. G. HASTINGS 
 of the University of Nebraska. 
 
 LAW AS A MEANS TO AN END. By RUDOLF VON IHERING 
 of the University of Berlin. Translated by ISAAC HUSIK of 
 the University of Pennsylvania. 
 
 MODERN FRENCH LEGAL PHILOSOPHY. By A. FOUILLEE, 
 J. CHARMONT, L. DUGUIT and R. DEMOGUE of the Uni- 
 versities of Paris, Montpellier, Bordeaux and Lille. Trans- 
 lated by MRS. F. W. SCOTT and JOSEPH P. CHAMBERLAIN. 
 
 SCIENCE OF LEGAL METHOD, SELECT ESSAYS. By 
 Various Writers. 
 
 THE FORMAL BASES OF LAW. By G. DEL VECCHIO of the 
 University of Bologna. Translated by JOHN LISLE of the 
 Philadelphia Bar. 
 
 THE PHILOSOPHY OF LAW. By JOSEF KOHLER of the Uni- 
 versity of Berlin. Translated by ADALBERT ALBRECHT.
 
 COMPARATIVE 
 
 LEGAL PHILOSOPHY 
 
 Applied to Legal Institutions 
 
 BY 
 LUIGI MIRAGLIA 
 
 Professor of the Philosophy of Law in the University of Naples 
 
 TRANSLATED FROM THE ITALIAN BY 
 
 JOHN LISLE 
 
 of the Philadelphia Bar 
 
 WITH AN INTRODUCTION BY 
 
 ALBERT KOCOUREK 
 Lecturer on Jurisprudence in Northwestern University 
 
 tfmit 
 THE MAGMILLAN COMPANY 
 
 1921 
 
 All rights reserved
 
 COPYRIGHT, 1912 
 BY THE BOSTON BOOK COMPANY
 
 GENERAL INTRODUCTION TO 
 THE SERIES 
 
 BY THE EDITORIAL COMMITTEE 
 
 "Until either philosophers become kings," said Soc- 
 rates, "or kings philosophers, States will never succeed 
 in remedying their shortcomings." And if he was 
 loath to give forth this view, because, as he admitted, 
 it might "sink him beneath the waters of laughter and 
 ridicule," so to-day among us it would doubtless resound 
 in folly if we sought to apply it again in our own field 
 of State life, and to assert that philosophers must be- 
 come lawyers or lawyers philosophers, if our law is 
 ever to be advanced into its perfect working. 
 
 And yet there is hope, as there is need, among us to-day, 
 of some such transformation. Of course, history shows 
 that there always have been cycles of legal progress, 
 and that they have often been heralded and guided by 
 philosophies. But particularly there is hope that our 
 own people may be the generation now about to exem- 
 plify this. 
 
 There are several reasons for thinking our people 
 apt thereto. But, without delaying over the grounds 
 for such speculations, let us recall that as shrewd and 
 good-natured an observer as DeTocqueville saw this 
 in us. He admits that "in most of the operations of 
 the mind, each American appeals to the individual exer- 
 cise of his own understanding alone; therefore in no 
 country in the civilized world is less attention paid to 
 philosophy than in the United States." But, he adds, 
 "the Americans are much more addicted to the use of 
 general ideas than the English, and entertain a much
 
 iv GENERAL INTRODUCTION 
 
 greater relish for them." And since philosophy is, 
 after all, only the science of general ideas analyzing, 
 restating, and reconstructing concrete experience 
 we may well trust that (if ever we do go at it with a will) 
 we shall discover in ourselves a taste and high capacity 
 for it, and shall direct our powers as fruitfully upon law 
 as we have done upon other fields. 
 
 Hitherto, to be sure, our own outlook on juristic 
 learning has been insular. The value of the study of 
 comparative law has only in recent years come to be 
 recognized by us. Our juristic methods are still primi- 
 tive, in that we seek to know only by our own experi- 
 ence, and pay no heed to the experience of others. 
 Our historic bond with English law alone, and our con- 
 sequent lack of recognition of the universal character 
 of law as a generic institution, have prevented any wide 
 contact with foreign literatures. While heedless of 
 external help in the practical matter of legislation, we 
 have been oblivious to the abstract nature of law. 
 Philosophy of law has been to us almost a meaningless 
 and alien phrase. "All philosophers are reducible in 
 the end to two classes only: utilitarians and f utilitari- 
 ans," is the cynical epigram of a great wit of modern 
 fiction. 1 And no doubt the philistines of our profession 
 would echo this sarcasm. 
 
 And yet no country and no age have ever been free 
 (whether conscious of the fact or not) from some drift 
 of philosophic thought. "In each epoch of time," says 
 M. Leroy, in a brilliant book of recent years, "there is 
 current a certain type of philosophic doctrine a phil- 
 osophy deep-seated in each one of us, and observable 
 clearly and consciously in the utterances of the day 
 alike in novels, newspapers, and speeches, and equally 
 
 1 M. Dumaresq, in Mr. Paterson's "The Old Dance Master."
 
 GENERAL INTRODUCTION v 
 
 in town and country, workshop and counting-house." 
 Without some fundamental basis of action, or theory 
 of ends, all legislation and judicial interpretation are 
 reduced to an anarchy of uncertainty. It is like mathe- 
 matics without fundamental definitions and axioms. 
 Amidst such conditions, no legal demonstration can be 
 fixed, even for a moment. Social institutions, instead 
 of being governed by the guidance of an intelligent free 
 will, are thrown back to the blind determinism of the 
 forces manifested in the natural sciences. Even the 
 phenomenon of experimental legislation, which is pecu- 
 liar to Anglo-American countries, cannot successfully 
 ignore the necessity of having social ends. 
 
 The time is ripe for action in this field. To quote the 
 statement of reasons given in the memorial presented at 
 the annual meeting of the Association of American Law 
 Schools in August, 1910: 
 
 The need of the series now proposed is so obvious as hardly to 
 need advocacy. We are on the threshold of a long period of construc- 
 tive readjustment and restatement of our law in almost every depart- 
 ment. We come to the task, as a profession, almost wholly untrained 
 in the technic of legal analysis and legal science in general. Neither 
 we, nor any community, could expect anything but crude results 
 without thorough preparation. Many teachers, and scores of 
 students and practitioners, must first have become thoroughly 
 familiar with the world's methods of juristic thought. As a first 
 preparation for the coming years of that kind of activity, it is the 
 part of wisdom first to familiarize ourselves with what has been 
 done by the great modern thinkers abroad to catch up with the 
 general state of learning on the subject. After a season of this, we 
 shall breed a family of well-equipped and original thinkers of our 
 own. Our own law must, of course, be worked out ultimately by 
 our own thinkers; but they must first be equipped with the state 
 of learning in the world to date. 
 
 How far from "unpractical" this field of thought and research 
 really is has been illustrated very recently in the Federal Supreme 
 Court, where the opposing opinions in a great case (Kuhn v. Fair-
 
 vi GENERAL INTRODUCTION 
 
 mont Coal Co.) turned upon the respective conceptions of "law" 
 in the abstract, and where Professor Gray's recent work on "The 
 Nature and Sources of the Law" was quoted, and supplied direct 
 material for judicial decision. 
 
 Acting upon this memorial, the following resolution 
 was passed at that meeting : 
 
 That a committee of five be appointed by the president, to arrange 
 for the translation and publication of a series of continental master- 
 works on jurisprudence and philosophy of law. 
 
 The committee spent a year in collecting the material. 
 Advice was sought from a score of masters in the leading 
 universities of France, Germany, Italy, Spain, and else- 
 where. The present series is the result of these labors. 
 
 In the selection of this series, the committee's pur- 
 pose has been, not so much to cover the whole field of 
 modern philosophy of law, as to exhibit faithfully and 
 fairly all the modern viewpoints of any present impor- 
 tance. The older foundation-works of two generations 
 ago are, with some exceptions, already accessible in 
 English translation. But they have been long sup- 
 planted by the products of newer schools of thought 
 which are offered in this series in their latest and most 
 representative form. It is believed that the complete 
 series will represent in compact form a collection of 
 materials whose equal cannot be found at this time in 
 any single foreign literature. 
 
 The committee has not sought to offer the final 
 solution of any philosophical or juristic problems; nor 
 to follow any preference for any particular theory or 
 school of thought. Its chief purpose has been to present 
 to English readers the most representative views of the 
 most modern writers in jurisprudence and philosophy 
 of law. The series shows a wide geographical represen- 
 tation; but the selection has not been centered on the
 
 GENERAL INTRODUCTION vii 
 
 notion of giving equal recognition to all countries. 
 Primarily, the desire has been to represent the various 
 schools of thought; and, consistently with this, then to 
 represent the different chief countries. This aim, how- 
 ever, has involved little difficulty; for Continental 
 thought has lines of cleavage which make it easy to rep- 
 resent the leading schools and the leading nations at 
 the same time. Germany, for example, is represented 
 in modern thought by a preponderant metaphysical 
 influence. Italy is primarily positivist, with subordinate 
 German and English influences. France in its modern 
 standpoint is largely sociological, while making an effort 
 to assimilate English ideas and customs in its theories 
 of legislation and the administration of justice. Spain, 
 Austria, Switzerland, Hungary, are represented in the 
 Introductions and the shorter essays; but no country 
 other than Germany, Italy, and France is typical of any 
 important theory requiring additions to the scope of 
 the series. 
 
 To offer here an historical introduction, surveying the 
 various schools of thought and the progress from past 
 to present, was regarded by the committee as unneces- 
 sary. The volumes of Dr. Berolzheimer and Professor 
 Miraglia amply serve this purpose; and the introductory 
 chapter of the latter volume provides a short summary 
 of the history of general philosophy, rapidly placing 
 the reader in touch with the various schools and their 
 standpoints. The series has been so arranged (in the 
 numbered list fronting the title page) as to indicate that 
 order of perusal which will be most suitable for those who 
 desire to master the field progressively and fruitfully. 
 
 The committee takes great pleasure in acknowledg- 
 ing the important part rendered in the consummation 
 of this project, by the publisher, the authors, and the 
 translators. Without them this series manifestly would 
 have been impossible.
 
 viii GENERAL INTRODUCTION 
 
 To the publisher we are grateful for the hearty spon- 
 sorship of a kind of literature which is so important to 
 the advancement of American legal science. And here 
 the Committee desires also to express its indebtedness 
 to Elbert H. Gary, Esq., of New York City, for his 
 ample provision of materials for legal science in the 
 Gary Library of Continental Law (in Northwestern 
 University). In the researches of preparation for this 
 Series, those materials were found indispensable. 
 
 The authors (or their representatives) have cordially 
 granted the right of English translation, and have shown 
 a friendly interest in promoting our aims. The com- 
 mittee would be assuming too much to thank these 
 learned writers on its own behalf, since the debt is one 
 that we all owe. 
 
 The severe labor of this undertaking fell upon the 
 translators. It required not only a none too common 
 linguistic skill, but also a wide range of varied learning 
 in fields little travelled. Whatever success may attend 
 and whatever good may follow will in a peculiar 
 way be attributable to the scholarly labors of the several 
 translators. 
 
 The committee finds special satisfaction in having 
 been able to assemble in a common purpose such an array 
 of talent and learning; and it will feel that its own small 
 contribution to this unified effort has been amply recom- 
 pensed if this series will measurably help to improve 
 and to refine our institutions for the administration of 
 justice.
 
 EDITORIAL COMMITTEE OF THE ASSOCIATION 
 OF AMERICAN LAW SCHOOLS 
 
 JOSEPH H. DRAKE, Professor of Law, University of Michigan. 
 ALBERT KOCOUREK, Lecturer on Jurisprudence, Northwestern 
 
 University. 
 
 ERNEST G. LORENZEN, Professor of Law, University of Wisconsin. 
 FLOYD R. MECHEM, Professor of Law, University of Chicago. 
 ROSCOE POUND, Professor of Law, Harvard University. 
 ARTHUR W. SPENCER, Editor of the Green Bag, Boston, Mass. 
 JOHN H. WlGMORE, Chairman, Professor of Law, Northwestern 
 
 University. 
 
 LIST OF TRANSLATORS 
 
 ADALBERT ALBRECHT, North Easton, Mass. (Associate Editor of 
 
 the Journal of Criminal Law and Criminology). 
 JOSEPH P. CHAMBERLAIN, Columbia University, New York, 
 
 N. Y. 
 WILLIAM G. HASTINGS, Lincoln, Neb. (Dean of the Faculty of 
 
 Law, State University.) 
 ROBERT L. HENRY, JR., Grand Forks, N. D. (Professor of Law in 
 
 the State University). 
 ISAAC HUSIK, Philadelphia, Pa. (Lecturer on Philosophy in the 
 
 University of Pennsylvania). 
 MRS. RACHEL SZOLD JASTROW, Madison, Wis. 
 ALBERT KOCOUREK, Chicago, 111. (of the Editorial Committee). 
 JOHN LISLE, Philadelphia, Pa. (of the Philadelphia Bar). 
 MRS. ETHEL FORBES SCOTT, State University, Urbana, 111. 
 FREDERIC S. SPIEGEL, Cincinnati, Ohio (Judge of the Superior 
 
 Court).
 
 INTRODUCTION TO THE TRANSLATED 
 VOLUME 
 
 BY ALBERT KocouREK 1 
 
 Now that we are having placed before us, in an 
 approachable form, the best modern materials of the 
 European continent on philosophy of law, it will be 
 possible for us to ascertain, at first hand, what of value 
 there may be in this kind of learning. 
 
 Philosophy of law, if not wholly an alien phrase, is, 
 at least for us, an obscure collocation of words. In a 
 vague apprehension of its content and limits, we asso- 
 ciate with it all that is sublimely elevated and 
 fundamentally basic in our legal life and pass on. It 
 resembles the anthropomorphic God of the Hebrew 
 Scriptures. Residing at a distance, it influences our 
 everyday concerns with a power too remote, and too 
 mysterious, to enter into our practical cause-and-effect 
 ideas. It is to the practical mind at once too lofty, 
 and too metaphysical, to coordinate with the median 
 plane of experience. 
 
 There are even those among us who, seeing only the 
 undeniable elements of brute force and material egoism 
 within life, and the resultant expression of an organized 
 social power which restrains the clashing and warring 
 instincts of a herd of human wolves, deny that there is 
 any philosophy of law, and seek the ultimate notion 
 of the law in the will of the sovereign. This denial 
 (without pausing to find what becomes of that search 
 after the finalities of truth which has been pursued 
 
 1 Lecturer on Jurisprudence in Northwestern University, Chicago.
 
 xii INTRODUCTION 
 
 from the beginning of history) carelessly brushes aside 
 the entire structure of philosophy of law as an unneces- 
 sary and unreal creation an invention which has no 
 sensible contact with the political world founded on com- 
 mand and obedience, and no existence therefore in rela- 
 tion to anything within the compass of our experience. 
 
 But we have not been either more or less fortunate 
 than other countries in our traditions and our inherited 
 ideas. Our racial sense of immediacy the immediacy 
 which has gripped up to the exploitation of the direct, 
 the special, the local, and the concrete in life has only 
 had the effect of temporarily staying the progress of 
 philosophic thought. Like other countries, we too have 
 been caught between the nether millstone of a form of 
 political materialism which disavows everything but the 
 imperative element in law, and the upper stone of a 
 form of juridical idealism which claims too much. 
 
 Until the middle of the 19th century, the notion of 
 natural law, under its variety of disguises and protean 
 shapes, remained ascendant as the final hypothesis of 
 legal truth. This natural law was thought to consist 
 of certain fixed and universal principles adaptable for 
 all times to every system of law by direct incorporation, 
 and applicable to the concretest expression of legal 
 standards. This unmitigated form of natural law has 
 been abandoned wherever philosophy of law has become 
 a discipline of thought. Its elimination has not been 
 effected, however, without a struggle. In the language 
 of Windscheid it is an "ancient, never-ending dream of 
 mankind." 1 
 
 1 On the continent, its essential idea has again been vigorously pro- 
 claimed, as a natural law "with a variable content," by the neo- Kantian 
 school, chiefly through Stammler in Germany, Del Vecchio in Italy, 
 and Charmont in France, all of whom will be represented in this series. 
 This modified doctrine is not to be confused, however, with the unre- 
 lenting natural law of the eighteenth century.
 
 INTRODUCTION xiii 
 
 It is curious to observe the dualistic phenomenon of 
 practicing an imperative theory of law, and believing 
 in a metaphysical law of nature. Nourished on the 
 pseudo-philosophy of Blackstone, the notion of an 
 unalterable standard of justice has entered the very 
 stronghold of the law in the English-speaking countries, 
 and finds its strongest support among our practical 
 lawyers and judges, who might be expected to be the 
 first to deny that there is any philosophy of law. Jus- 
 tice and its companion term, Reason, have long been 
 established as the inviolable and transcendent meta- 
 physical arcana of positive law. Judicial decisions and 
 the traditions of legal speech are full of the jargon of 
 reason and justice. The changes that have been rung 
 on them in legal phrase have all but exhausted the poetic 
 possibilities of our language; but the inquiry is not 
 pushed to determine their nature or their scope. They 
 are idols to be revered upon their pedestals, but not 
 designed for other use. That this judgment may not 
 appear as without basis, let the following typical char- 
 acterization (taken at random) speak as the declaration 
 of one of the ablest and most practical of judges; it 
 asserts of justice that "Truth is its handmaid, Freedom 
 is its child, Safety walks in its steps, Victory follows in 
 its train; it is the brightest emanation from the Gospel, 
 it is the attribute of God." A thing so deserving of 
 praise should not be obscured. It should be (as Berolz- 
 heimer says of philosophy of law) not an appendix 
 to the law, but rather a prospectus. 
 
 Our literature is not destitute of anticipations, at 
 least, of legal philosophy. We had at one time the dog- 
 matic conception that justice is the word of God. That 
 solution having been found unworkable in an unbe- 
 lieving world, resort was had to the imperative idea that 
 justice is the command of the sovereign. We are still
 
 xiv INTRODUCTION 
 
 swayed by the rationalistic conception that there is an 
 inherent standard of justice as ever-present and inflexible 
 as the law of gravitation and capable of approximation 
 by the positive law. On the other hand, we have also 
 had the historical explanation of law chiefly through 
 the writings of Sir Henry S. Maine. Finally, Professor 
 T. H. Green has given us a neo-Hegelian insight into 
 legal institutions, and Professor Pound has shown us 
 the value of the sociological point of view. This enum- 
 eration touches, perhaps, all the well-recognized aspects 
 of the nature and function of law. And yet we have no 
 philosophy of law. Our legal philosophy is fragmen- 
 tary, occasional, and unread. It would be strange 
 if we should first learn to estimate the position of 
 Bentham, Maine, and Spencer through the judgment 
 of Italy, and yet this seems to be the reasonable 
 probability. 
 
 England and America are slowly, very slowly, coming 
 to realize that an analysis of fundamental legal ideas, 
 and a study of the formal scope the osseous tissue of 
 the corpus juris are indispensable in a refined and 
 scientific administration of justice. The intolerable 
 burden of mountains of cases is compelling this 
 unwilling belief. We cannot, however, expect to rest 
 with a mastery of the form of the law; we must investi- 
 gate in a scientific way its substance, its relation to life, 
 and all other reality, employing all the aids that learning 
 can afford. We must clothe the skeleton of formal law 
 with tissues, and provide it with organs that will make 
 it fit for its environment and its mission in the scheme 
 of life. 
 
 Law is not a thing detached and isolated. It is not 
 disposed of by pronouncing a humanly conceived for- 
 mula. It has an inherent relation to all other facts. 
 It must therefore be studied in connection with and as a
 
 INTRODUCTION xv 
 
 part of the combined reality of the world. It cannot 
 be limited (as by Hobbes) to the politically sovereign 
 organization; its mission is not understood by simple 
 reference to the promotion of happiness or the suppres- 
 sion of pain ; nor its nature known by pointing out its 
 similarity to language in psychological development. The 
 historical incidents of the creation of law, the assembled 
 facts of legal evolution, and the accidental phases of 
 what law has wrought in the history of the world under 
 varying social influences, do not touch the reality within. 
 
 If we can go as far as this, we are prepared to believe 
 that the mere nature of legislation and its interpretation 
 do not sound the depths of legal institutions. These 
 studies are the immediate tools of the legal workman, 
 but they do not employ the ultimate forces of the law. 
 We may have successful and skillful lawyers who know 
 nothing and seek nothing beyond a traditional and 
 astute application of legal rules, just as we may have 
 useful, successful, and skillful bricklayers who are not 
 burdened with any learning beyond the proper laying of 
 bricks. The hewer of wood and the drawer of water, 
 while performing their necessary functions in the prog- 
 ress of the world, do not, however, by their numerical 
 preponderance or by the admitted necessity and useful 
 dignity of their labor, render dispensable (or at least 
 do not make valueless) a knowledge of the organic unity 
 of the world, the facts of which are stated by the sciences 
 and explained by philosophy. 
 
 The practical aspect of philosophy of law is mani- 
 fested in the two principal legal activities in which the 
 human will exerts itself as the sole or at least as a con- 
 tributory force; that is to say, in the making of legal 
 standards, and in the application of legal standards. 
 
 I. With respect to the creation of law, it is self- 
 apparent that legislation cannot be based on mere caprice,
 
 xvi INTRODUCTION 
 
 conjecture, or fancy, and at the same time be regarded 
 as an enlightened cultural activity. In the words of 
 Ihering, the object is the creator of the law, or in the 
 thought of Socrates, life is to be considered as a system 
 of ends. 
 
 Several choices of viewpoint are conceivably present 
 in the creation of legal standards. First, we may 
 supinely yield to a blind determinism. We may regard 
 the making of legal standards as the mechanical expres- 
 sion of inherent forces whose fixed causal chain involves 
 even the processes of the mind, and which we are impo- 
 tent to control, and could only ineffectively seek to 
 understand. This standpoint is reminiscent of the 
 conception of the Historical School which thinks of 
 law as the unconscious unfoldment of the spirit of the 
 people. 
 
 Secondly, we may regard legislation as the product 
 of a conscious egoism the varying phenomenon of a 
 conflict among the asserted interests within the State. 
 This view, by reason of its proximate relation to the 
 motives most strikingly apparent in life, finds a ready 
 acceptation, and perhaps sums up the average man's 
 conception of the nature of legal development. No 
 doubt, also,' it contains an obvious element of objective 
 truth. This standpoint may admit of a modification 
 allowing the intervention of a predominant ethical ele- 
 ment, realized in a formula such as that of Bentham, 
 that every institution and every action must be judged 
 according to its tendency to promote happiness or arrest 
 pain; or some similar and equally futile mechanical or 
 arithmetical attempt to find a solution of the complex 
 problems of human existence. 
 
 Or thirdly, the conscious process of legislation may 
 proceed experimentally, without an underlying formula, 
 and without the aid of the social sciences, and with no
 
 INTRODUCTION xvii 
 
 crystallized idea of what social end is to be attained. 
 This indeterminism of legislative method and legislative 
 purpose can lead only to the most incongruous social 
 results. Only after the effects are seen does it know 
 what legislation may accomplish. It is the unplanned 
 labor of children playing in the sand, who lay out now 
 one pattern and then another without reason or purpose. 
 
 Fourthly, we find the causal explanation of legal 
 institutions. This looks to whole domain of empiristic 
 knowledge, and especially to biology, psychology, and 
 economics. This, the sociological standpoint, goes be- 
 yond a mere political or historical interpretation of law. 
 The causal conception provides not only a method, but 
 also an explanation. Its tools are experiment, observa- 
 tion, and induction rarely, if ever, deduction. It 
 seeks to provide and employ, by conscious impulse, the 
 scientific materials for a legislation that will accomplish 
 definite and predetermined social results. It looks for 
 its generalizations of social destiny to the objective and 
 sensible world. As an explanation, it represents the 
 law as an evolutionary growth, adapting itself from age 
 to age to variations in social conditions and responding 
 to the ideals of the time. Causality does not involve 
 the blind, unconscious, or mechanical unfoldment of 
 social institutions implied in a Darwinistic evolution. 
 The element of hazard is present, but the voluntary ele- 
 ment persistently overrides the spontaneous factor of 
 growth. This view of legal institutions is one which 
 may confidently be expected to find among us an approv- 
 ing reception when it is better understood. "The Eng- 
 lish do not care to shoot in the air," says Mr. Hoffding. 
 "They prefer to hit the mark even should the roar of their 
 artillery be less imposing." 
 
 That a method so constructively helpful and so con- 
 sonant with our close-to-the-ground mental inclinations
 
 xviii INTRODUCTION 
 
 should have been almost wholly neglected illustrates 
 the persistence of ideas. We have become so much 
 attached to the natural law conception of a monad 
 theory of justice operating under an official guidance, 
 that we have missed the notion of law as a social product. 
 We have likewise resolved all its possibilities into an 
 exclusively individualistic legal purpose, which is becom- 
 ing more and more unworkable, and which is accordingly 
 exerting heavy strains on our fundamental legal theories. 
 
 Lastly, there remains another aspect of legal develop- 
 ment which bears the name of Finalism. It assumes 
 an ultimate destiny in human institutions, projected 
 from the beginning of time. From this point of view, 
 legislation is an instrument for the attainment of definite, 
 concrete, and isolated objects, which harmoniously con- 
 form, in detail, with the aggregate plan of life. Even 
 the acceptance of the Hegelian formula that "all that is 
 real is rational" does not exclude human effort and the 
 actual manifestation of a real will as to the particular 
 aspects of social life. 
 
 The objective world may be said to consist of special 
 realities. These isolated facts must be dealt with in an 
 isolated way by the temporal and local forces under 
 our control in the form of commands and prohibitions 
 laws, standards of conduct applicable to the various 
 concrete conditions of life. Man's function in the 
 world is not of less importance, even though we admit 
 that the total reality transcends his understanding, and 
 is beyond his control. His will is not less real because 
 the world moves on by a constant progression. We may 
 even admit (without violence to anything conceived 
 to be practical) that the unified process expresses rea- 
 son, and that man's activity is only relative, and that 
 this activity being relative, frequently opposes, tempo- 
 rarily at least, the general current of cosmic evolution.
 
 INTRODUCTION xix 
 
 Our interest in the universal and our efforts to mark 
 out with our finite intelligence, from the moving shadows 
 on the wall of objective appearance, the full meaning 
 of the reality passing behind us, lies in our relation to 
 the absolute and the desirability that the particular 
 under our control shall not be in Conflict with the 
 universal. 
 
 II. The application of law is the second point of prac- 
 tical contact between legal institutions and philosophy 
 of law. It may, perhaps, here, be sufficient to point 
 out that mere words cannot circumscribe the infinite 
 variations of life. The permutations of conduct are 
 not to be reduced to a set of words, or to any number 
 of sets of words. The legal rule applied in a special 
 and concrete case may arise from another rule (a prin- 
 ciple) of higher generic order, but the latter, being neces- 
 sarily abstract, cannot nourish a fruitful consequence 
 without a spirit. Every legal system has its own soul. 
 The spirit of legislation, and its relation to the totality 
 of knowledge, cannot be adequately understood by the 
 culminating generalizations derived from an induction 
 of legal rules. The essential necessity of philosophy of 
 law to attain this completion of thought suggests itself, 
 without any manner of resort to that species of philoso- 
 phy of law which has disparagingly been called 
 speculative. 
 
 Even that vague idea of ultimate legal principle, which 
 is always current, reaches out helplessly into the ocean 
 of philosophic idea, and manages always to attach itself 
 to one of those islands of foam which are called reason, 
 justice, or truth. In the most highly developed legal 
 systems the province of law (legislation) never com- 
 pletely covers the territory of fact. Something must 
 always be left to discretion, and the present tendency 
 seems to be even in the direction of extending the scope
 
 xx INTRODUCTION 
 
 of discretion or fact, as against the domain of mere 
 verbal formalism, which frequently works counter to 
 the very objects which may be assumed to be sought. 
 The discretion to be employed must be a discretion which 
 is in harmonious accord with all the facts and tendencies 
 of life. It must be a discretion with an end, otherwise 
 it becomes either a chaos of vacillation and imperma- 
 nency, or a dominion of arbitrary formalism. 
 
 A recent writer 1 comments on the uncertainties of 
 philosophy of law. In truth, however, these conflicts 
 are much less serious than they superficially appear. 
 It is true that we have a school which seeks to find the 
 truth from within, that is to say, subjectively. We 
 have another that looks wholly to the objective world. 
 Then again there are varieties of standpoint, which in 
 one way and another combine the subjective and objec- 
 tive viewpoints. There are indeed these differences of 
 method and conflicts of explanation. But there is essen- 
 tial agreement among all schools of philosophy as to 
 those things within the purview of our mental powers, 
 and as to things of interest to us here and now. The 
 problem of the validity of knowledge may always be 
 with us, and the ultimate reality may perhaps always 
 be beyond us; but these foundations of controversy, and 
 these allurements to lead on our aspirations, argue 
 nothing against the effort to unify and coordinate the 
 isolated particulars of our common sense. All modern 
 philosophy accepts the sciences. It accepts the facts 
 of life as they are understood by the average man. 
 But it goes beyond the mere fact to the internal relation 
 of all facts to each other. It is often "taken for granted 
 that when you entered a philosophic class-room you had 
 to open relations with a universe entirely distinct from 
 
 1 G. Aillet, in "Revue de Metaphysique et de Morale," March, 1911.
 
 INTRODUCTION xxi 
 
 the one you left behind you in the street"; 1 and this 
 mistaken notion is difficult to eradicate. 
 
 Whether the philosophic method adopted is idealistic 
 or materialistic, and whether it holds to monism, dual- 
 ism, or pluralism, is a matter of little consequence, if 
 the results reached from the different angles of approach 
 are in substantial agreement as to the purpose of life. 
 The higher truth of philosophy does not scorn the results 
 of the special sciences, and while adopting their con- 
 tributions, discovers in them, by methods of its own, a 
 relation and a unity which they alone are unable to 
 furnish. We do not discard religion simply because 
 there are multiform sects, creeds, and beliefs. Religion 
 and philosophy are twin activities; one seeks the highest 
 reality by faith and inspiration, and the other aspires 
 to the ultimate by demonstration and intuition. 
 
 As there are thus degrees and kinds of philosophy, so 
 we may expect to find different varieties of philosophy 
 of law, since philosophy of law is only an aspect of 
 general philosophy, and perhaps one of the most impor- 
 tant of its aspects. 
 
 A little reflection shows us that we have positive law, 
 jurisprudence, legal sociology (Rechtspolitik} , and phil- 
 osophy of law in an ascending series. Positive law is 
 the concrete law existing and applied within the State; 
 jurisprudence is the scientific study of these concrete 
 details in a systematic arrangement from an abstract 
 standpoint; legal sociology goes beyond the positive 
 law and deals with its relation to all other social sciences ; 
 while philosophy of law crowns the edifice of the legal 
 system, and exhibits its relation to the totality of exist- 
 ence. Philosophy of law, to claim the serious attention 
 of practical lawyers, must have a vital, inherent, and 
 
 'James: "Defense of Pragmatism."
 
 xxii INTRODUCTION 
 
 direct contact with the practical administration of jus- 
 tice. It must be more than a "ballet of bloodless cate- 
 gories." Nor is it sufficient that it be an auxiliary 
 embellishment; for its claim could then be asserted no 
 further than similar claims for divers other forms of 
 knowledge which may be indirectly useful and promotive 
 of a more refined administration of justice. 
 
 But it is not necessary or desirable that any system of 
 law be dominated by a highly speculative and undemon- 
 strable metaphysic. We should not expect a revelation 
 of absolute truth. No friend of philosophy of law will 
 go to this length. No developed system of law, how- 
 ever, can afford to decline the direct advantages afforded 
 by philosophy of law, both in testing by analysis the 
 character of our legal ideas, and in refining by its syn- 
 theses the functions of legal justice, and in elevating it 
 from the stupidity of a mere experimentalism. We 
 need not go so far as to deny everything that transcends 
 a positivistic explanation of the universe. We should 
 not expect of philosophy of law the unattainable. 
 In the language of Kohler, 'To ask of the philosopher the 
 impossible is to compel him either to offer a fantastic 
 substitute for metaphysics or to renounce it altogether." 
 
 The philosophy of law demanded by the twentieth 
 century is not one that attempts to represent the law as 
 it ought to be, and is therefore always in advance of the 
 fact; nor yet a philosophy of law that is always too late 
 to be of any use in life. It must relate to the present, 
 and must be connected, inherently and organically, 
 with the problems of our daily experience. It must be 
 drawn from the clouds into the thick of life, not with 
 the expectation that every man will be a philosopher, 
 but that every man may be. The hierarchy of modern 
 specialism is not to be disturbed or assaulted, but directly 
 and consciously furthered.
 
 INTRODUCTION xxiii 
 
 Bentham and Austin have given us in our own tongue 
 the juristic foundation for work that must soon be seri- 
 ously prosecuted by us if we are to have any relief from 
 the perpetual deluge of our oceans of cases. With the 
 presentation of this series, of which this excellent book 
 of Professor Miraglia is one of the introductory volumes, 
 Dr. Wigmore, who is the author of the idea and who has 
 been the leading spirit in its realization, is making it 
 possible for the English-speaking world to attain direct 
 knowledge of the foundations for real legal thought in 
 the large substantive problems common to every system 
 of law. The conception of such a series was a bold one, 
 and it is only to be feared that it may be many years 
 before we are prepared fully to appreciate its true value. 
 It may, however, reasonably be hoped that this notable 
 addition to our equipment of knowledge will plant the 
 seed that will (if not in this, at least in some other gen- 
 eration) grow into a cultural harvest, and thus most 
 fitly and acceptably honor the scholarly mind that con- 
 ceived its purpose. It is not unlikely that this series 
 of books will produce a result perhaps entirely un- 
 reckoned, in stimulating an interest in general philosophy. 
 If this comes to pass, a cobwebbed academic highway 
 will owe something more than politeness to the mere 
 jurist. 
 
 Germany is looked upon as the seat of the decisive 
 conflicts in philosophy of law; but the thinkers of Ger- 
 many have perhaps been too near the clamor of 
 battle to give us an account of the struggle for a Phil- 
 osophy of Law free from the color of strong partisan 
 bias. The presentation of this treatise at this point 
 in the series, while determined by the value of the work 
 itself, is secondarily a tribute to the country from 
 which it emanates. When philosophy of law was dead 
 in all the rest of the world, Italy, the land of Vico,
 
 xxiv INTRODUCTION 
 
 Spaventa, Romagnosi, and Vanni, the country which 
 gave us in the Corpus Juris the greatest historical 
 monument of private law Italy alone nourished its 
 vital spark and spread its living products over the map 
 of Europe. 
 
 Since Philosophy of Law must rest upon foundations 
 sufficient to support universal knowledge and universal 
 reality, Professor Miraglia commences with a discussion 
 of the basic propositions of the leading general philoso- 
 phies, treating the subject from a critical and compara- 
 tive standpoint. With this necessary orientation accom- 
 plished, he passes to the notion of law, and treats in detail 
 the various institutions which appear in society as phe- 
 nomena of the law, employing the same critical and 
 comparative method which distinguishes the general 
 part of his book. 
 
 If it has been necessary at the beginning to soar in 
 the ether of pure reason, no just complaint can be raised, 
 since the author has been able to effect a substantial 
 landing-place in the midst of the most tangible and 
 familiar practical concerns. Little formative influence 
 will follow even a philosophical explanation of such 
 settled institutions as property, obligations, and the 
 family. They are coeval with the history of civiliza- 
 tion, and have attained their highest theoretical form. 
 It is, however, true that on the practical side much 
 remains to be done in adjusting these institutions to 
 the harmony of the world-movement, and it is here that 
 philosophy will exert its most important service in laying 
 open the internal relation of these legal conceptions to 
 the facts of life, for their further refinement. But a 
 problem greater than the mere explanation or simple 
 refinement of legal institutions remains. Shall these 
 institutions continue to exist, and if not, what is to take 
 their place?
 
 INTRODUCTION xxv 
 
 This work is primarily a book of instruction, but it 
 is not a closed vehicle for a theory. It is true that the 
 author has a point of view, but it is not rudely obtruded 
 on the readers' attention to the exclusion of all other 
 points of view. Kohler's great book is plainly labelled 
 a book of instruction, but it is limited to his own new 
 system of philosophy. 
 
 Professor Miraglia covers the whole field not only of 
 the subject-matter of Philosophy of Law but also of 
 the philosophies bearing on this subject-matter. As 
 might be expected, the emphasis is largely placed on 
 the Italian thinkers, but the available German, English, 
 and French materials are treated with broad and sympa- 
 thetic intelligence and conspicuous fairness. The wide 
 horizon inspected, and the richness of view attained, 
 testify eloquently to the author's industry and scholar- 
 ship. 
 
 Italy has been easily the most prolific country of the 
 world in Philosophy of Law, and the latter years have 
 witnessed no diminution in this literature. It may be 
 regarded as unfortunate that the time of the last edition 
 of this treatise was such that the prevailing currents of 
 thought in Italy could not have been taken into account. 
 This deficiency will, however, be remedied by other 
 works in this series. 
 
 To conclude, has Miraglia any position of his own in 
 philosophy of law, and if so what is it? It can hardly 
 be said that there can be extracted from this work any 
 independent standpoint. It is a strong argument in 
 favor of this treatise that such is the fact. A work of 
 this extent could not, however, be written without 
 manifesting philosophical preferences. Classified in a 
 word, Miraglia is Vico modernized. History and meta- 
 physics are reconciled, and the inductive and deductive 
 methods are combined. Law, says Miraglia, consists
 
 xxvi INTRODUCTION 
 
 of the true and the certain. One is the metaphysical 
 element; the other is the historical factor. It is at once 
 idea and reality. Just how he unites them is perhaps 
 not entirely clear. Does he rely on the Kantian bridge 
 between thought and thing, or the Hegelian principle 
 of identity, or is the relation between idea and reality 
 simply treated in a pragmatic sense? 
 
 Mirgalia's metaphysics is clearly not that of Hegel 
 or of the neo-Hegelian school, nor yet of Hume or 
 Kant. The Hegelian metaphysics is speculatively con- 
 structive. The Critical philosophy, on the other hand, 
 tells us that we can know nothing about it except that 
 it is unknown. Miraglia inclines toward a scientific 
 metaphysics, but the point of stress is on the certain 
 the historical element. Kohler's metaphysics, for ex- 
 ample, is also a scientific metaphysics. He justifies 
 it in the same way that science affords information 
 concerning celestial bodies that are beyond the power of 
 telescopes; but Kohler's metaphysics is transcendental 
 and ideal. 
 
 Miraglia's ideal element admits of the Hegelian view 
 of the State as an ethical unity, but he does not assimilate 
 his dialectic process. A metaphysics such as this, which 
 does not leap too far into the dark, and yet holds some- 
 thing up to our aspirations toward knowledge, will 
 frighten no one away from philosophy of law. The 
 Italians have been greatly influenced by English thinkers, 
 and their philosophy has accordingly followed a very 
 conservative course. 
 
 This treatise adequately covers the ground that the 
 author has laid out, and in connection with Berolz- 
 heimer's volume practically exhausts the historical part 
 of this subject. Philosophy of law can be popularized 
 no more than the integral calculus. But this work 
 affords an excellent means of approach to a difficult
 
 INTRODUCTION xxvii 
 
 matter; if the inherent problems are not made easy, 
 their aspect is at least robbed of a too forbidding severity. 
 It is fortunate, also, to find in its translator a happy 
 realization of the combination of scholarship, linguistic 
 skill, and technical knowledge, necessary to present this 
 book to English readers.
 
 BIOGRAPHICAL NOTE ON THE AUTHOR 
 
 LUIGI MIRAGLIA was born at Reggio in Calabria in 
 1846. He took his degree at Naples in 1866, and, after 
 several years of teaching in subordinate posts, was 
 appointed to the chair of philosophy of law in the 
 University of Naples. He was at the same time pro- 
 fessor of political economy in the Agricultural Scien- 
 tific School at Portici. Among the other posts later 
 filled by him at various times were those of Secretary of 
 the Academy of Political and Moral Science, and of 
 President of the Society for the Advancement of Naples. 
 A final distinction often conferred in Italy for juristic 
 and literary eminence was the royal appointment as 
 Senator of the Kingdom. He died in September, 1903. 
 
 Among his numerous books and essays are the fol- 
 lowing: "The Fundamental Principles of the Various 
 Systems of Legal Philosophy, and Hegel's Ethico- 
 Juridical Doctrines" (1873); "The Modern Philosophy 
 of Law in its Relation to Industrial Law" (1874); "The 
 Primitive Family and Natural Law" (1877); "History 
 and Theory of the Right of Prize-Capture in War" 
 (1871); "Studies in the Science of Education" (1871). 
 
 The first work above-named received a second edition 
 in 1893; and the third, enlarged edition, in 1903, bearing 
 the simple title, "Philosophy of Law," is the work here 
 translated.
 
 Co tf)e IHemorp of 
 J&2 JFatfjer
 
 PREFACE 
 
 This book is a complete course in the Philosophy 
 of Law, intended for the use of undergraduate students 
 of law. It can be easily seen that a course in the Phil- 
 osophy of Law in a law school cannot have the same char- 
 acter and the same scope as a similar course in a school 
 of philosophy or art. But the Philosophy of Law must 
 necessarily be a part of philosophy, and therefore must 
 not be confused with an introduction to the study of 
 positive law. Taught in a law school, it should sketch 
 with a free hand the organism of legal institutions ac- 
 cording to the principles of reason, and should have 
 regard to the multiplications and intimate relations 
 of philosophy with the legal, social, and political sciences. 
 The second part of this book has no other object than 
 to extend philosophical thought over various subjects 
 that for a long time have been considered apart from 
 any such relation. 
 
 LUIGI MIRAGLIA.
 
 TABLE OF CONTENTS 
 
 INTRODUCTION 
 
 1. Greek Speculation and Roman Dogma 1 
 
 2. The Philosophy of the Middle Ages 7 
 
 3. The Renaissance 12 
 
 4. Bacon, Des Cartes, and Grotius 19 
 
 5. Hobbes, Spinoza, and Leibnitz 25 
 
 6. Puffendorf , Thomasius, and Wolff. Rousseau 33 
 
 7. Vico 41 
 
 8. Kant 46 
 
 9. Genovesi, Fichte, Spedalieri, and Romagnosi 50 
 
 10. The Writers of the Reactionary Period. The Historical 
 and Philosophical Schools. Schelling and Schleier- 
 macher 60 
 
 11. Hegel 66 
 
 12. Rosmini, Herbart, Trendelenburg, and Krause. The 
 various phases of Schelling's philosophy. Stahl and 
 Schopenhauer 71 
 
 13. Materialism, Positivism, and Criticism 82 
 
 BOOK I 
 GENERAL PART 
 
 CHAPTER I 
 
 THE IDEA OF THE PHILOSOPHY OF THE LAW 87 
 
 Philosophy and the sciences. The character of modern 
 philosophy as foreshadowed by Vico. Philosophy of the law 
 as part of philosophy. The human idea of law according 
 to the doctrine of Vico, and the definitions of Kant, Hegel, 
 Trendelenburg, Romagnosi, and Rosmini. The social and 
 legal theories. Law and positive philosophy.
 
 xxxiv CONTENTS 
 
 CHAPTER II 
 
 THE IDEA OF LAW AND LOGICAL METHODS 104 
 
 Induction and deduction. Induction, observation, and ex- 
 periment. The idea of natural law and that of the civil 
 good (of Amari) as shown by induction. The importance of 
 the comparative historical method used by Vico, Amari, Post, 
 and Maine. Parallelism in the development of language 
 and law. Statistic induction. The duty of deduction. 
 The abstract and concrete universals as principals. 
 
 CHAPTER III 
 
 THE INDUCTIVE IDEA OF LAW 119 
 
 The study of the ethico-juridic consciousness of various 
 peoples. The contribution of the Aryan and Semitic races 
 to the history of civilization. The idea of law as the meas- 
 ure of the Aryan race. Measure based on the physical 
 order, on positive law, and reason. 
 
 CHAPTER IV 
 THE THEORETICAL PRESUPPOSITIONS OF THE DEDUCTIVE 
 
 IDEA OF LAW 135 
 
 The principle of personality. The organic and spiritual 
 elements of the person and their correspondence. The un- 
 folding of materialism. The theory of evolution. The 
 criticism of mechanical evolution. 
 
 CHAPTER V 
 COROLLARIES OF THESE THEORETICAL PRESUPPOSITIONS. . . 157 
 
 The theory of evolution and psychology. Fundamental 
 sentiment and the sensations. Consciousness and its origin. 
 Sensible and cognitive representations. Thought and the 
 categories. Cognition according to objective empiricism. 
 Criticism of that theory. 
 
 CHAPTER VI 
 PRACTICAL FOUNDATIONS OF THE DEDUCTIVE IDEA OF 
 
 LAW. DEVELOPMENT AND DIVISION 178 
 
 Instinct, desire, and will. Caprice and moral freedom. 
 The constancy of human acts as shown by statistics. 
 End of man and happiness. Human happiness and the law. 
 The imperative, prohibitive, and permissive forms of law. 
 Law as a principle of coercion or coexistence and of harmony, 
 The rational tri-division of law. The division of Gaius.
 
 CONTENTS xxxv 
 
 CHAPTER VII 
 
 CRITICAL ANALYSIS OF THE PRINCIPAL DEFINITIONS OF 
 
 LAW 210 
 
 The doctrines that give preference to the sensible content 
 of law: Hobbes, Spinoza, Rousseau, Stuart Mill, and 
 Spencer. The doctrines that consider law as an abstract 
 rational form : Kant, Fichte, and Herbart. The definitions 
 of Krause and of Trendelenburg. The truth of the doctrines 
 examined. 
 
 CHAPTER VIII 
 
 LAW. MORALS, AND SOCIAL SCIENCE 242 
 
 The law as an ethical study. The relation between morals 
 and law in history. Criticism of the confusion and separa- 
 tion of the two terms. The common bases and real differ- 
 ence. Ethical and social life. Vico, Suessmilch, and the 
 physiocratic forerunners of social science. Comte's soci- 
 ology and the various movements. Spencer's sociology. 
 Sociology as the philosophy of the social sciences. The 
 analogies between society and organism. The relations 
 between law and the social sciences. 
 
 CHAPTER IX 
 
 LAW, SOCIAL ECONOMY, AND POLITICS 267 
 
 The social-economic regulations and the ancient 
 and modern philosophers of law. Ethics, sociology based on 
 biology, politics, and history as hypotheses of economics. 
 The character of the economic fact. The relations of law 
 and economics. The concept of politics. Politics, the 
 social sciences, ethics, and law. The full meaning of the 
 State. 
 
 CHAPTER X 
 RATIONAL AND POSITIVE LAW. SOURCES AND APPLICATION. 295 
 
 The distinction between rational and positive law in their 
 nature and in history. Habit and primitive custom. Juris- 
 prudence and its office. Legislation and the codes. The 
 efficacy of statutes in space. The efficacy of the statutes 
 in time. The diverse theories of retroactivity.
 
 CONTENTS 
 
 BOOK II 
 PRIVATE LAW 
 
 CHAPTER I 
 
 THE INDIVIDUAL AND HIS RIGHTS 319 
 
 The person. Essential or inherent rights and acci- 
 dental or acquired rights. The principle of rights. 
 The right to physical and moral life. The right to freedom. 
 The right to equality, society, and health. The right to 
 work. 
 
 CHAPTER II 
 
 THE HISTORICAL CONCEPTION OF INHERENT RIGHTS 343 
 
 The rights of man in the state of nature. The state of 
 nature according to the philosophers of the XVIII century 
 considered in connection with the natural state of the 
 Roman jurisconsults and the Greek philosophers. The 
 theory of knowledge, and the methods of conceiving the 
 essential rights of the person. The inherent rights of 
 modern philosophy. The regimes of status and contract. 
 
 CHAPTER III 
 
 INCORPOREAL PERSONS 361 
 
 The scope of incorporeal persons. The theories of fiction 
 and of equivalency. The theory that looks upon the incor- 
 poreal person as a vehicle. The theory of the complexity of 
 rights sui juris. The ideas of the German publicists. The 
 real subject in a corporation or foundation. The rights 
 of the incorporeal persons and the jus confirmandi of the 
 State. The theory of Giorgi. 
 
 CHAPTER IV 
 
 PROPERTY AND THE METHODS OF ACQUIRING IT 382 
 
 Property and its rational basis. Doctrines dealing 
 with this basis. Limitations and control of property. 
 Original and derivative methods of acquisition.
 
 CONTENTS xxxvii 
 
 CHAPTER V 
 THE HISTORY OF PROPERTY AND OF METHODS OF ITS 
 
 ACQUISITION 401 
 
 The acquisitive activity of animals and man. The his- 
 tory of property and the history of personality. Collective 
 property. The family community. Christianity and the 
 worth of the individual. Feudalism. The Reformation 
 and natural law. Complete individualization, and the 
 control of private property. The methods of primitive 
 acquisition. The division of property. Prescription, 
 equity, and civil procedure. 
 
 CHAPTER VI 
 
 PREDIAL PROPERTY IN THE SOIL 433 
 
 Collective ownership of land. Wagner's theory of the 
 ownership of manufactories. Spencer's theory on the 
 ownership of land. Private ownership of land and rent. 
 The doctrines of Henry George and of Loria as to land. 
 
 CHAPTER VII 
 
 PROPERTY IN FORESTS AND MINES 460 
 
 The functions of the forests. Right* of deforestation. 
 Its restraint and the reasons therefor. Mining property 
 and the phases of the industry. Criticisms of arguments 
 in favor of the owner of the soil. The doctrine that attri- 
 butes the ore to the discoverer. 
 
 CHAPTER VIII 
 
 INDUSTRIAL PROPERTY 480 
 
 The merchandise of labor and its price. Work as prop- 
 erty. Unions and strikes. The industrial jury. The 
 ownership of capital and property. Collectivism and 
 mutualism. The theory of Marx. Criticism of collectiv- 
 ism and of the theory of Marx. Trusts. 
 
 CHAPTER IX 
 
 COMMERCIAL PROPERTY. THE RIGHT OF AN AUTHOR OR 
 
 INVENTOR 512 
 
 The conception of commercial property. Freedom of 
 exchange. Competition. Primitive notion of trade. The 
 right of the author before and after the invention of print- 
 ing: its basis and its character. The right of the inventor.
 
 xxxviii CONTENTS 
 
 CHAPTER X 
 
 SUNDRY PROPERTY RIGHTS 523 
 
 Classification of rights over the property of others. 
 Servitudes and their kinds. The methods in which 
 servitudes are created, exercised, and extinguished. 
 Emphyteusis. The super-soil. Pledge and mortgage. 
 The character of liens. 
 
 CHAPTER XI 
 
 POSSESSION 539 
 
 The nature of possession. Its historical origin. Its de- 
 velopment in legislation. Critical exposition of the differ- 
 ent absolute and relative theories. Its rational basis. 
 Criticism of Ihering's theory of the will to possess. 
 
 CHAPTER XII 
 
 OBLIGATIONS 553 
 
 Obligations. Their origin. The sources of obligation. 
 Their various kinds and forms. The different forms and 
 their distinction. 
 
 CHAPTER XIII 
 
 CONTRACT AND ITS FORMS 567 
 
 The notion of contract. Its phases and its basis. Essen- 
 tial requisites. Vices of consent and some recent theories. 
 The interpretation of contracts. Their classification; and 
 the doctrines of Kant and Trendelenburg. 
 
 CHAPTER XIV 
 FREEDOM OF CONTRACT AND THE CONTRACT OF LABOR. . 588 
 
 Freedom of contract, its limits and its guaranty. The 
 social mission of private law. The equality of the parties 
 in the contract of labor. The systems that regulate the 
 liability of the employer for industrial accidents. 
 
 CHAPTER XV 
 
 USURY 598 
 
 Interest and its limitations. Freedom of interest. 
 Usury and its methods. Usury as a form of civil wrong 
 and the methods of fighting it. Usury as a crime. Criti- 
 cism of the theory of Stein. The special features of the 
 crime of usury. Law and life.
 
 CONTENTS xxxix 
 
 CHAPTER XVI 
 
 PARTNERSHIP, EXCHANGE, TRANSPORTATION, AND SUN- 
 DRY WAGERING CONTRACTS 614 
 
 The contract of partnership and its forms. Partnership 
 and incorporeal persons. The regime of authorization 
 and of supervision. Ancient and modern exchange. The 
 nature of the contract of transportation. Insurance and 
 its new theories. Gambling contracts. 
 
 CHAPTER XVII 
 
 THE PRIMITIVE FAMILY. THE FAMILY AS THE PROTO- 
 TYPE OF THE STATE 633 
 
 Mating and the instinct of reproduction in animals. The 
 theories of Lucretius and Vico. Primitive unions. Ma- 
 triarchy. Exogamy and rape. The beginnings of the 
 development of the patriarchal family. The progres- 
 sive individualization of relationship. The process of 
 specification, and the object of the family. 
 
 CHAPTER XVIII 
 
 THE CONJUGAL RELATION 667 
 
 Love as the foundation of matrimony. The idea of 
 matrimony. The conditions. Civil matrimony. The 
 precedence of the civil ceremony. The relation between 
 the parties. Marital authority. Bebel's book, and the 
 idea of Spencer. The systems by which property is 
 regulated in matrimony. 
 
 CHAPTER XIX 
 
 INDISSOLUBLE MARRIAGE AND DIVORCE 696 
 
 The ideal of indissolubility. The concrete demands of 
 life. The question of divorce in relation to individual 
 rights and social and historical facts. Divorce and 
 the church. Causes of divorce. Precautions. 
 
 CHAPTER XX 
 
 THE PARENTAL RELATIONSHIP 712 
 
 The tendency to re-live in others. The basis and phases 
 of the patria potestas. Guardianship, its kinds, and trustee- 
 ship. Adoption. Children born out of matrimony. 
 The right to pursue the father. Legitimation.
 
 xl CONTENTS 
 
 CHAPTER XXI 
 
 DEFINITION, HISTORY, AND BASIS OF INHERITANCE 732 
 
 The conception of heredity. Intestacy and testacy 
 in history. Inheritance and ancestor worship. Doctrines 
 as to the basis of inheritance. Domestic co-ownership 
 and the right of property, as bases for inheritance. 
 
 CHAPTER XXII 
 
 INTESTACY AND THE WILL 751 
 
 The degree and quality of relationship. The capacity 
 of succession. The classes of heirs. Representation. 
 Capacity to make a will or to receive through a will. Kinds 
 of wills. Intestacy. The right of representation and 
 testamentary succession. Mistakes in the underlying and 
 immediate cause. Conditions. The right to the increase. 
 Substitution and trusts. Principles common to all 
 kinds of succession.
 
 Comparative Legal Philosophy
 
 COMPARATIVE LEGAL PHILOSOPHY 
 INTRODUCTION 
 
 A SURVEY OF PHILOSOPHICAL SYSTEMS 
 
 I 
 GREEK SPECULATION AND ROMAN DOGMA 
 
 The fundamental principle of things and of knowledge 
 is to be found, according to Greek speculation, always 
 outside the mind in the object. The object for the 
 IONICS is water, the primitive material without deter- 
 minate quality (that is, infinite), and the air; for the 
 PYTHAGOREANS, it is number, the essence of things; 
 for the ELEATICS, it is pure, abstract, and immovable 
 being, that has no beginning, nor end, that is not divis- 
 ible, that does not go from place to place, but is 
 always one and perfect. The origin of beings, accord- 
 ing to HERACLITUS, is birth or the perennial flow; 
 according to EMPEDOCLES, it lies in the complexity of the 
 four elements, water, air, fire, and earth, originally differ- 
 ent in quality, from whose union and separation things 
 are born and perish; and for DEMOCRITUS, it consists 
 in the indefinite plurality of atoms without qualitative 
 difference and various only in form. 
 
 ANAXAGORAS builds up the Whole with primitive ele- 
 ments of diverse nature, called by him "seeds" and later 
 "homoiomerei," and with the Noos or intelligence that
 
 2 INTRODUCTORY SURVEY 
 
 gives them their order. The SOPHISTS show that truth 
 cannot be found by natural knowledge, because phe- 
 nomenon is variable and contradictory. The reality of 
 things is different from our knowledge, and therefore 
 thought is only a belief, and happiness lies in pleasure 
 and utility. SOCRATES discovers the ideal object, and 
 teaches that true knowledge is founded on the con- 
 cept of things, separated by induction and determinated 
 by definition. PLATO raises the Socratic concepts (now 
 become ideas) and gives them their order by dialectics. 
 Belief, in his mind, is connected with sensible phe- 
 nomena, while the concept corresponds to the real and 
 immutable essence or idea, as a metaphysical principle. 
 ARISTOTLE makes the Platonic idea the form of reality, 
 because there can be no essence without phenomena. 
 
 After Plato and Aristotle came the philosophers of 
 the ideal objectivity, with the belief that the principle 
 of things is not yet found, and that, consequently, it is 
 convenient to let practical interest prevail and to lull 
 the spirit to sleep with internal satisfactions. STOICISM, 
 EPICUREANISM, and SCEPTICISM express the same 
 tendency of the subject to renounce the possibility of 
 self-satisfaction. The Stoics and the Epicureans con- 
 sider knowledge as a means of practical life, whose object 
 is the happiness attainable only by reason freed from pas- 
 sion, that is, by virtue, according to the first, or by sense 
 and pleasure aided by calculation, according to the sec- 
 ond. The Sceptics believe that the satisfaction of the 
 spirit is not best attained by knowledge because things 
 are unknowable and indifferent for us, for we can at- 
 tribute to them different and contradictory predicates. 
 If things are indifferent for us, the spirit should not be dis- 
 turbed, whatever happens. Scepticism is the demonstra- 
 tion that truth cannot be learned by reason ; differing from 
 the teaching of the Sophists, which is the demonstration
 
 GREEKS AND ROMANS 3 
 
 that truth cannot be attained by natural knowledge or 
 sense. Therefore, Socrates opposes the Sophists and 
 says that if truth cannot be learned by sense or belief, 
 it is found in knowledge, or the concepts. 
 
 Since we cannot learn truth by reason, conclude the 
 NEO-PLATONISTS, it must be higher than reason and 
 must be regarded as a principle transcendent, supra- 
 intelligible, ineffable, an object of faith, ascetics, and 
 ecstatics. The supra-intelligible in Neo-Platonism is 
 nothing more than the old Greek intellect, which by its 
 nature always seeks the principle of things without 
 itself, since it is without its own content; that is, truth 
 which is felt in an objective manner. 
 
 The Ethos, given such a character in Greek philosophy, 
 cannot fail to be objective and to be established, there- 
 fore, in the form of a natural organism. In such, the 
 part is always medial and never ultimate; hence the 
 defect of any true personal and private right in Greek 
 society. Pythagoras sees in justice a number; Socrates 
 discerns the measure of all things in the common 
 nature of men, all eager for happiness, who attain it 
 in its truth, through the realization of the concepts, 
 that represent the ideal object. Plato places the Ethos 
 in the idea of happiness, which controls in the spiritual 
 world, having actual substance, as supreme as the sun, 
 which does not depend upon the beholder but sheds its 
 light over all. Such an idea (which has no part in 
 reality, although reality can mould itself thereon) 
 cannot be better incarnated than in a beautiful and arti- 
 ficial state, all complete, as Minerva, springing fully 
 armed from the head of Jupiter. The Platonic state is 
 ideal, exemplary; it represents man in the abstract, and 
 unites in itself the variety of individual potentialities 
 by that same force by which the internal principle 
 of life interpenetrates the organs.
 
 4 INTRODUCTORY SURVEY 
 
 According to Aristotle, the Ethos must be found in 
 reality and the purpose of nature; whence the maxim 
 that no institution is good unless it conforms to nature, 
 and also the value of the methods of comparison and 
 analogy with which he builds up his politics. He holds 
 that the State, not any of its components, is the child 
 of the need which human beings, being neither animals 
 nor gods, feel for unity and development; the State 
 makes for the consummation and happiness that is the 
 result of the unification, desired by nature, of all human 
 activities and, therefore, it has the duty of making 
 good and just citizens. Aristotle criticizes Plato for 
 having recognized a separate ideal essence, while 
 giving to the State an attribute which he denies to its 
 components; Plato criticizes the master because he has 
 conceived the State as a mere empty unity, while har- 
 mony is not derived from a single tone but from many; 
 and yet he excludes slaves, farmers, and artisans from 
 effective participation in that ethical eudemony made, 
 by him, the basis of the State. 
 
 In general, the Greek State is not of the highest type 
 because it is a natural organic body and not an ethical 
 or human organization. It can be said to be gifted 
 with classic beauty but it lacks the nobler and higher 
 qualities contained with such potentiality in the Chris- 
 tian faith. Stoicism places wisdom above the State, 
 withdrawing from the world and condemning itself to 
 complete impassivity; for, in this belief, individual life 
 is lost in that of humanity, and the life of humanity is 
 confused with universal life. For the Epicureans, suffer- 
 ing is evil and the wise man works for lasting peace. 
 Scepticism, on account of the confusion of phenomena, 
 forms no judgment and lives in apathy. The wise man 
 among the Neo-Platonists hopes to be included by the 
 inconceivable principle of the whole through asceticism
 
 GREEKS AND ROMANS 5 
 
 and ecstaticism by which PLOTINUS was made happy in 
 three or four visions. 
 
 The ROMAN world is the world of the will, and, there- 
 fore, of law and politics. The will, in such a world, 
 on the one hand, is continuously seen in the controlling 
 and inflexible order of the State, and, on the other, 
 begins to develop in the form of individual rights. With 
 the development of the principle of will with its subjec- 
 tive nature, private rights cannot fail to arise, and the 
 State cannot long preserve the rough semblance of a 
 natural organic object. In Rome, private law was at 
 first strict, ironclad, and cramped. Then it extended, 
 becoming facile, general, supple, and equitable; for 
 equity guards the right, which the law, in its generality, 
 cannot protect. And finally it became human law, and, 
 consequently, proclaimed the principle that slavery, an 
 institution of mankind and contrary to nature, does not 
 control the spirit, and that men, in natural law, are free 
 and equal. 
 
 CICERO, the greatest philosopher of the Roman world, 
 having no scientific knowledge of the manifestation of 
 subjective rights as the act of the abstract power of 
 the will, is inferior to Roman realism. He is not the 
 author of a philosophy of his own, but he follows, as an 
 eclectic, the Greek writers; he professes his doubt; he 
 does not believe that mind can be absolutely sure, but 
 thinks that it is satisfied with simple verisimilitude. 
 In Ethics, he eliminates doubt, on account of its dan- 
 gerous consequences, and appeals to the immediate 
 consciousness, in which are found the germs of virtue, 
 and to the consensus of mankind to define the honest 
 and establish some speculative foundation for it. He 
 prefers the ethical principle of the Stoics, which as a 
 practical man he modifies; he derives law not from the 
 statutes of the Twelve Tables or the Edicts, but from
 
 6. INTRODUCTORY SURVEY 
 
 human nature; he reproduces the Aristotelean theory 
 of the State, but assigns it a mixed form, proper to the 
 political organization of Rome.
 
 THE MIDDLE AGES 7 
 
 II 
 THE PHILOSOPHY OF THE MIDDLE AGES 
 
 The empty subject, represented by the Neo-Platonists 
 as an object, received in the Middle Ages all its concrete- 
 ness and, in the terms of Christianity, was denned as 
 the Word or absolute mind. Philosophy, henceforth, 
 became a subjective principle. Man, the image of God, 
 and the incarnation of the Word, came to his own; and 
 the ancient State, losing its high significance, was con- 
 stricted within closer bounds. The more intimate part 
 of the individual was no longer subjected to the political 
 power, but rather to new beliefs that originally kept 
 within the celestial realm in which they were born and 
 acted in opposition to the pagan regime. The Apostle 
 created a contradiction between the desires of the flesh 
 and the impulses of the spirit. LACTANTIUS believed that 
 true justice lay in the worship of the one God, unknown 
 to the Gentiles. AUGUSTINE speaks of a celestial city, 
 the seat of truth and justice, in contradistinction to the 
 terrestrial city, the den of thieves and the product of 
 original sin. The terrestrial city can acquire an ethical 
 value by giving itself over to the defense of the Church, 
 which had not at this time acquired its character of 
 ruler or its mundane interests. 
 
 The struggle between Christianity and the world was, 
 much diminished when, through the work of religious 
 phantasy, the celestial city was populated by an host 
 subject to divine command, possessing an history, and 
 the earth became holy through contact with the Church ; 
 which, in its turn, became a temporal instead of a spiritual 
 communion. The conciliation was effected through a 
 new conception of participation, of which THOMAS
 
 8 INTRODUCTORY SURVEY 
 
 AQUINAS was the founder. Aristotle had said that the 
 universals are second substances, and he had further 
 asserted that they were qualities. REALISM developed 
 the side of the Aristotelean system in which the univer- 
 sals appear as separate forms. NOMINALISM was in its 
 turn based on that side in which primal reality seems 
 placed in the individual. Nominalism, not being easily 
 correlated with any dogmas, was soon condemned; 
 Realism, being analogous to the heterodox transcenden- 
 talism of the Arabian commentators, met a similar fate. 
 Aquinas, in the footsteps of ALBERTUS MAGNUS, tried a 
 compromise, claiming that the universals are models of 
 creation before material existence, and that in material 
 existence they are the substance of our conceptions. 
 
 There is, for Aquinas, one eternal law in God ; a natural 
 law, which is a participation in the eternal, the light of 
 knowledge and the norm of ethical and juristic acts; 
 and a human or positive law, a shadow of the natural, 
 just as that in its turn is a shadow of the eternal. But 
 he did not succeed in his project of conciliation; for the 
 supernatural remained in its transcendence in the divine 
 intellect, and the sphere of the king (who must obey 
 Aristotle) remained in opposition to the sphere of the 
 priest (who must obey the Bible). Hence the existence 
 of contradictory sentences in St. Thomas, who now 
 derives the State from the social nature of man, and 
 assigns happiness for its object, and general consent for 
 its base, and yet at the same time considers it the 
 realization of the divine kingdom in its temporal aspect. 
 The amalgam dissolved, the Aristotelean elements finally 
 concentrated in the political doctrines of MARSILIUS of 
 Padua, and the traditional in the dynastico-hierarchical 
 doctrines of PETER of Andlo. While EGIDIO COLONNA, 
 on the one hand, exaggerated the religious principle, 
 presenting the type of hermit-prince lacking confidence
 
 THE MIDDLE AGES 9 
 
 in his own power and love of glory, and advised the pur- 
 suit of happiness in God, on the other hand he repro- 
 duced the ideas of the Stagirite and gained from his 
 contemporaries the title of "doctor fundatissimus." 
 
 DANTE conceived law as the personal and real relation 
 between man and man, and therefore distinguished it 
 from morals, by which an action is good or bad of itself 
 without relation to the rights of another. He knew 
 how to distinguish with fine acumen the difference 
 between legal freedom and untrammelled caprice; be- 
 cause the former, according to him, is the power that 
 makes every individual competent to work in accord- 
 ance with the judgment that he himself has made about 
 the rectitude of his acts without being disturbed by 
 others ; the latter is only governed by desire. The object 
 of civil society, in his mind, is the increase of civiliza- 
 tion, which lies in the greatest possible development of 
 the mind. Law strengthens it; otherwise, it does not 
 deserve its great name. The State looks to the attain- 
 ment of the transitory aims of human nature, while the 
 Church, concerned with non-transitory objects, cannot 
 exercise civil dominion. Dante solved the political 
 problem by a system of free and independent municipal 
 States, each the head of its own territory, with power 
 to resist possible discordant ambitions vested in a king 
 or supreme magistrate of the republic of the States, who 
 would govern according to fundamental laws and be 
 the agent of all the States. The principle of unity is 
 present in the mind of Dante on every side; because of 
 the predominating divine analogy, because of the classic 
 remembrance of the Empire, because of the constitu- 
 tion of the Church, equally catholic, and because of his 
 purpose of avoiding struggles between nations. 
 
 BARTOLUS, who deserves credit for having extended 
 the sphere of jurisprudence by collecting analogies from
 
 10 INTRODUCTORY SURVEY 
 
 the cases decided by the Roman jurisconsults and for 
 having freed judges from many difficulties and accused 
 persons from corruption on the part of the judges, 
 does not consider (because he is a writer on practical 
 law) the history of the philosophy of law. Fc- the same 
 reason all the commentators disregard it, however 
 keen they may be in the discovery of equitable prin- 
 ciples, and in the application of the dialectics of Arabian 
 philosophy to the treatment of various subjects. So 
 Bartolus disregards it in the sphere of civil law (as 
 Gravina has said). The Thomists and the Scotists, 
 irreconcilable in all else, agree in admitting an idealistic 
 and realistic duality. OCCAM destroys such inter- 
 mediaries in the order of cognition and recognizes direct 
 communion of subject and object; on the practical 
 score, he, the enemy of intermediaries, shows in a con- 
 cise way the necessity of the separation of State and 
 Church. Occam separates also theology from phil- 
 osophy, and discusses the contradictions of dogma and 
 reason. For him, reason is insufficient, and the only 
 meams of salvation is faith. Theology, separated from 
 philosophy, is thought safe because its enemy is no 
 longer by its side, and Philosophy becomes freer. 
 
 This is the moment of the dissolution of Scholasticism, 
 which had represented a progressive step from Patris- 
 ticism. Patristic philosophy is the elaboration of dogma 
 by philosophic reflection. Scholasticism is the systema- 
 tization of definite dogmas and the demonstration of 
 their coherence. Both Scholastics and Patristics rely 
 on dogma, to which the Scholastics apply rationalistic 
 methods, distinguishing, therefore, belief from faith. 
 Faith and reason, at first, are in accord, though the 
 latter depends upon the former. Later, the two terms 
 are found in disaccord, and separate, resulting in the 
 downfall of Scholastics. Here it is useful to remember
 
 THE MIDDLE AGES 11 
 
 that even from its beginning Scholasticism had two 
 diverse directions; Duns SCOTUS says that authority 
 comes from reason, and ANSELM of Aosta teaches that 
 there is no need. of understanding in order to believe, 
 but that belief is necessary in order to understand. 
 
 In the days of Scholasticism, other systems appeared, 
 which, though not generally received, are important 
 because they contained the germs of future specula- 
 tion. These systems depend also on the hypothesis of 
 transcendentalism, although they are not logically har- 
 monious therewith. Roger BACON recommends the 
 study of language, to understand the sources, and he 
 relies greatly on mathematical and natural sciences, 
 and states that without experience nothing can be known, 
 and that experience alone should control speculative 
 studies. But he connects internal experience with mysti- 
 cism and places theology above philosophy; teaching 
 that knowledge is vain if it has not the divine for an 
 object. Raymond LULLY considers demonstration more 
 important than faith; in the "Ars Magna," a logical 
 and mathematical method of unifying the concepts and 
 of resolving scientific problems, he tries to constitute 
 an a priori science and faith. NICHOLAS of Cusa admits 
 that the mind can raise itself to infinitude as a prin- 
 ciple in which contradictions coincide. Such coincidence 
 cannot be understood by science, and therefore there is 
 a state of learned ignorance. For him, God is the 
 absolute greatness in which all being is bound; the uni- 
 verse is the concrete greatness that contains explicitly 
 what God contains implicitly.
 
 12 INTRODUCTORY SURVEY 
 
 III 
 THE RENAISSANCE 
 
 Scholastic philosophy deprives the mind of truth 
 (which is contained in the definition of faith), and does 
 not include nature in its categories. The ensuing 
 philosophy, a complete criticism of Scholasticism, is 
 sceptic because truth placed above the intellect cannot 
 be attained; and it inclines to Naturalism, because, 
 according to the thinkers of the Renaissance, in nature 
 alone can be seen the traces and later the very substance 
 of truth, abstracted by mind and encompassed by 
 dogma. 
 
 The conviction of the divine worth of the world and 
 of man arose after humanity grew hungry in its inability 
 to find God either in the Church (become too terrestrial 
 with its wealth and its government) or in the Holy 
 Sepulchre (the aim of the Crusades). This was the 
 cause of the renewal of classic culture, which implied 
 an attentive study of phenomena, a respect for work, 
 a general need of reform, and the end of political feudal- 
 ism (so closely connected with religion and speculation). 
 By this conviction, largely, were caused many of the 
 important characteristics of the new age, such as the 
 increase of commerce (following the Crusades), the voy- 
 ages for the discovery of new lands and a new con- 
 tinent, the independence of lay authority, and the 
 formation of absolute monarchies. These destroyed 
 the feudal power and laid the foundation stone of 
 nationality, of Protestantism, and of the Catholic 
 Restoration, with the decrease in papal authority. 
 The invention of printing expressed the first unity of 
 popular thought. So the man of the Middle Ages was
 
 THE RENAISSANCE 13 
 
 transformed into that new man who follows a thousand 
 industries, who is tenacious of his profession, who con- 
 cerns himself with the facts of this world in popular 
 assemblies, who no longer runs to liberate sepulchres, 
 nor attends tourneys, but laughs in his sleeve at the 
 stories of the investiture of popes and kings. 
 
 In Italy, the new man was incarnate in MACHIAVELLI. 
 Completely dominated by the spirit of his time, he did 
 not seek the aid of metaphysical and theological ele- 
 ments for social reconstruction; these he held up to 
 scorn with fine irony, when he discoursed about the 
 ecclesiastical principalities. He went deep into the 
 effectual truth of things, and was not satisfied with its 
 image. His purpose was to make Italy a State. He 
 saw that, in his day, this could not be attained by moral 
 methods; and, having before his mind the ineffectual 
 attempt of SAVONAROLA, he fought a practical battle 
 without hesitation over the morality of his means. He 
 conceived of the State as a distinct institution essen- 
 tially civil, and having in itself a reason for existence, 
 and strong in its own force. Machiavelli did not go 
 out of the circle of political types designed by POLYB- 
 lus; and, like Polybius, he preferred the mixed type 
 (of which Paruta later accurately measured the difficulty) . 
 
 PROTESTANTISM was an act of the new man. After 
 starting with honest principles, it was not perverted by 
 LUTHER (as Guicciardini maintained); nor was it the 
 result of mere opportunity (as the Jesuits and Voltaire 
 have said). Protestantism destroyed the hierarchy. It 
 wanted the divine Word to be interpreted by free 
 and independent reason, by the individual soul; it 
 proclaimed in concise manner the individuality of con- 
 science. In Italy, the Lutheran movement was not 
 successful, because Italy possessed a literature and 
 philosophy greatly superior to the Protestant idea, as
 
 14 INTRODUCTORY SURVEY 
 
 FLORENTINUS pointed out. In Italy, the land of so many 
 religious sects and of so many tentative reforms, the 
 recovery of Greek culture had already inspired the study 
 of Aristotle in the original, while in Germany they still 
 studied a translation of the Old Testament. The 
 Italians were emancipated by the exclusively rational 
 character of their studies. Among Luther's com- 
 patriots Protestantism was a national slogan; it signi- 
 fied the destruction of Frederick's following, and by its 
 religious character it became popular. But Protes- 
 tantism in its first moments so exaggerated the intimacy 
 of man and God as to make faith, and not good works, 
 the only dispenser of salvation; the only means was 
 grace, excluding all human cooperation and free will. 
 Ethics cannot fail to be prejudiced by such an 
 exaggeration. 
 
 In the glorious days of the Renaissance, there flour- 
 ished the renowned followers of Plato and Aristotle 
 originators and reformers of philology, all of whom had 
 more or less sceptical tendencies and depended upon 
 nature and experience. They honored, for example, 
 among the Aristoteleans, POMPONAZZI, among the new 
 philologists, VIVES, among the reformers, MELANCH- 
 THON; which is a proof of what we have stated. 
 Pomponazzi believed that our knowledge is only a 
 shadow and trace of mind, that man is but a figure of 
 the immaterial and knows but little of his nature; 
 that sense is more powerful than reason. On the other 
 hand, he shows that man can in action attain that per- 
 fection which he cannot attain with the mind, and that 
 theoretical and practical intellect is impossible without 
 the body. Vives held that human science is limited, 
 that it only attains verisimilitude, and that the practical 
 element should be preferred to the speculative. This 
 famous philologist (not logical in his sceptical principles)
 
 THE RENAISSANCE 15 
 
 made the distinction (which Vico made later) that in 
 human affairs, and therefore in law, there are two ele- 
 ments, absolute truth and mere probability, and 
 observed that the true should be the aim of the prob- 
 able, established by the free will of men for common 
 utility. Such a distinction is found in the books of 
 Plato. In treating of truth and belief, Vives placed 
 natural law in superiority to divine law, and regarded the 
 former as the sanction of the latter. He separated the 
 office of philosopher from that of jurist, and conse- 
 quently recognized a law of humanity distinct from that 
 which is evolved from the various circumstances of time, 
 place, and need. Melanchthon, who wrote books of 
 moral philosophy, as OLENDORP and WINKLER wrote 
 books of natural law (full of positive religious data and 
 without scientific base), thought that man could not 
 know absolute truth; that he should remain within the 
 confines of experience ; and that he should follow not only 
 virtue but also life and the good things of life that 
 is, matrimony, society, and the well-ordered pleasures 
 which the gods concede to men. 
 
 In the first period of the Renaissance, Greek thought 
 was reconstructed by direct interpretation from its 
 sources, diluted by Christian elements added in the 
 Middle Ages. Marcello FICINO and the Florentine 
 Academy represent the return to Plato. Pompanazzi 
 represents the return to Aristotle. The Latin com- 
 mentary on the works of the Stagirite was laid aside, 
 and the Arabian of AVERROES and the Greek of ALEXANDER 
 of Aphrodisias were used. The first tends to the trans- 
 cendence of the intellect, to its existence separate and 
 independent of the body; the second to the immanence 
 of thought as an intrinsic form. 
 
 After this period of the reconstruction of the Greek 
 philosophy, comes that in which there is a tendency to
 
 16 INTRODUCTORY SURVEY 
 
 open a new life to the speculative spirit. TELESIUS, the 
 first of the new men, as Bacon called him, did not 
 follow theological or Aristotelean principles but con- 
 sidered the nature of things according to principles of 
 his own. For him, all knowledge was a derivative of 
 sense, which was connected with motion. Everything 
 in nature was reducible to matter and force. Force was 
 shown in the heat of the sun and the cold of the earth ; 
 heat was confused with motion. 
 
 BRUNO and CAMPANELLA are the greatest philosophers 
 in this second period, and are authors of a new philosophy 
 very different from the Aristotelean. Bruno brought 
 to life the principle of the infinity of nature. Accord- 
 ing to him, all is God-Nature; God outside the world 
 is left to the theological believers; the universe is the 
 infinite creature of an infinite creator, who is infinite in 
 his complications and in his sum, while it is explicitly 
 but not totally infinite. Individual things are mere 
 figures or accidentals. The ethical doctrine of Bruno 
 is lighted by the divine intellectual sun of truth, the sub- 
 stance of moral action and of morality, which it pene- 
 trates as a temporal power or prudence. Law should 
 be informed by reason and should result in utility. 
 Government is strength ; the act of the law is judgment 
 or legal punishment, which should not condemn words 
 or acts that do not affect the tranquility of the State. 
 
 Campanella, as a metaphysician, thinks that nature, 
 if not itself God, is certainly his living image. As a 
 psychologist, his motive is sense, and he recognizes its 
 final connection with motion. He distinguishes the 
 "sensus abditus" from the "sensus additus," in that one 
 is native and occult, and the other derivative. He 
 says that intellect is languid and rarified sense. The 
 "sensus additus," that is, concrete, determinate sense, 
 is founded on the original, "sensum abditum." He
 
 THE RENAISSANCE 17 
 
 writes, "Nos esse et posse, scire et velle, certissimum 
 principium primum." Campanella, however, recog- 
 nizes the divine more in religion than in nature. He 
 believes in progress, but in a theocratic manner, admit- 
 ting community of possessions and of women, the gov- 
 ernmental control of marriage, and the control of 
 society as an institution (whence the frugality and 
 poverty of the Solari), and he would govern the world 
 as a kind of universal pontifical monarchy. 
 
 God is revealed not only in religion but in nature as 
 well, according to the Neo-Platonists; at whose head is 
 Ficino. Nature therefore is not only the means for the 
 action of God but comprehends divine virtues and prop- 
 erties, which are open to the knowledge and utility of 
 man. Theosophy is the knowledge of God, in that it 
 is founded on a knowledge of nature. Nature is the 
 grand mystery, the key to which is the Cabala. This 
 has been defined as the Jewish gnosis. The gnosis 
 (whatever be its religious content) considers fact as a 
 veil under which the idea is hidden, and the value of 
 such content is its explanation of the world, that is for 
 speculative intent. The Cabala attests the presence 
 of the divine force of nature; Magic is the study by 
 which man tends to conquer it. Alchemy studies the 
 elementary occult forces, and Astrology tries to deter- 
 mine the influence of the stars on human acts. 
 
 BODIN works to acquire an exact knowledge of the 
 real elements of Politics and of the utility of social 
 order without searching out the necessary fundamentals. 
 In his process of examination, he follows Aristotle. 
 Grotius points this out, saying that Bodin converts 
 morals and law, at his own free will, into politics. 
 He deserves, however, the honor of having noted the 
 influence of climate on social institutions before MONTES- 
 QUIEU. This does not show (as Filangieri claimed) that
 
 18 INTRODUCTORY SURVEY 
 
 Montesquieu had no originality. Many have held that 
 the wise legislator should note the influence of climate, 
 and among them are Plato and Aristotle, as well as 
 Bodin; but none like Montesquieu made it the basis of 
 his system. 
 
 In this epoch, in which the criticism of Scholastic 
 hypotheses was strengthened and high consideration 
 was given to nature, the State was no longer looked 
 upon as an entity without ethical qualities, as an insti- 
 tution of fratricide and the result of sin; nor yet as a 
 means at the disposition of the Church for the destruc- 
 tion of heresy. Its object was not terrestrial virtue, 
 dependent upon celestial virtue, neither was it a body, 
 in respect to the Church, which was likened to mind; 
 but was considered as an aggregate of forms, whose 
 combination and disintegration was studied by Machia- 
 velli as a natural human institution, which contained in 
 itself that divine principle existing in the world. The 
 State existed of itself, and had no need of being con- 
 nected with the Church to become legitimate. It was 
 a complex of forces, the centre of which was the king 
 and later civil society. It took the form of an absolute 
 monarchy and was a factor in the development of nation- 
 ality; except in Italy, where those obligations towards 
 the Church, which Machiavelli records, were too strong 
 for it.
 
 BACON, DESCARTES, GROTIUS 19 
 
 IV 
 BACON, DESCARTES, AND GROTIUS 
 
 Modern philosophy, the daughter of the Renaissance, 
 was born of doubt. Its chief founders, BACON and 
 DESCARTES, sought for a secure basis of knowledge, free 
 from the doubt of the ancient hypotheses. 
 
 BACON placed, over against the Aristotelean Organ, the 
 "Novum Organum," in which induction, as the primal 
 factor, acquires a new experimental character. Man, in his 
 opinion, could not conquer nature without a knowledge 
 of her laws, without interpreting her. And the inter- 
 pretation of nature demanded experience. Experience 
 should be free from all that the mind introduced therein 
 of itself; that is, from prejudices or dogmas. It should 
 use the form of induction, based on facts in which the 
 law of the phenomena was exemplified; such a fact is 
 called by Bacon a prerogative instance. 
 
 DESCARTES to reconstruct science turned to thought. 
 He followed a movement opposed to that of Bacon. 
 For Descartes, the senses are not true witnesses; the 
 only indubitable knowledge of existence itself is from 
 the "cogito ergo sum." This knowledge, which is primal, 
 is clear, because the ego is present to itself; and is dis- 
 tinct, because thought is the characteristic by which 
 the ego differs from all other entities. From this primal 
 knowledge, from the knowledge of self-existence, are born 
 through deductive processes all cognitions. Science 
 always exists where a clear and distinct knowledge of 
 things can be had ; the mind doubts, because it is imper- 
 fect. If it believes itself imperfect, it must have the 
 idea of the perfect or infinite. If it has the idea of the 
 infinite, it means that an infinite cause has impressed it.
 
 20 INTRODUCTORY SURVEY 
 
 Inherent are the ideas of the ego and of God; acquired 
 are the ideas that man forms, whose cause lies outside 
 of him. The representations that refer to external 
 objects are not entirely derivative from bodies, because 
 there is in them some of our methods, for example, 
 color, smell, sound, and taste. Extension alone is not 
 one of our methods, but rather the very essence of ex- 
 ternal nature. Thought is spirit, extension is body; 
 the spirit is active and the body inert. 
 
 Bacon wishes to transform by experience the natural 
 and moral studies; yet with the latter he occupies him- 
 self little. He inclines to the thought that the moral 
 and political sciences are founded on belief, and not 
 directly on fact; and that the duty of public law is not 
 only to protect private law, but to take care of the edu- 
 cation and welfare of the citizens. Bacon's political 
 doctrine, which follows a line between moral principle 
 and legislation, and is contrary to an ideal type of abso- 
 lute perfection of society, looks to mutual intercourse, 
 trade, and the commonwealth. In his theory of mutual 
 intercourse, there is a noticeable confusion of the right 
 of society in its relation to law with the right of society 
 in its relation to education; in that of trade, there is 
 much erudition and many maxims of prudence. In his 
 third book, he does not speak of <the preservation of the 
 kingdom and of the method of making it happy, but of 
 the manner of extending its boundaries. It must not be 
 forgotten that the book was dedicated to the King of 
 England. The Chancellor's treatise on the sources of 
 law is a study not so much philosophical as practical, 
 containing wise precepts for legislation and entirely 
 dominated by a political principle. With this understood, 
 it is manifest that Francis Bacon should not be ranked 
 (as Lampredi ranked him) among the writers on natural 
 law.
 
 BACON, DESCARTES, GROTIUS 21 
 
 Descartes considered God as the principle of thought, 
 the extension of knowledge and motion. In man, the 
 unity of spirit and body is brought about in the passions 
 that owe their origin to both. Ethics aim to free man 
 from the sway of the passions. Freedom cannot be 
 gained without a true knowledge and comprehension 
 of them. Bruno had here foreshadowed this epoch by 
 his idea of Ethics founded on reason, and of a freedom 
 of the soul (as mind) from its union of God. 
 
 With the Cartesian philosophy, this new and great 
 movement which puts thought at the head, free from 
 external and traditional elements, as the source of the 
 honest and the just, and as the measuring rod of the 
 legitimacy of social institutions, is brought to the fore 
 and given a conspicuous position. This thought is 
 abstract. It is first looked upon as a faculty of the indi- 
 vidual man, and interpenetrates with the will of others. 
 The principle of subjectivity is the foundation of 
 modern philosophy, whose motive is either thought or 
 experience. Experience is resolved into external sen- 
 sations, into pleasures and pains, into the utilities of 
 man, conceived as an individual; for the sensations 
 are essentially individual. In experience, the subject 
 prevails, as sense or tendency to pleasure, aided 
 by hedonistic calculations. The principle of subjec- 
 tivity was manifest also in the Reformation, which 
 emancipated the religious consciousness and recognized 
 the rights of the individual soul. And it is seen in all 
 the series of attempts made by the individual to obtain 
 at least his liberty, in these latter days. The indi- 
 vidual, absorbed by the community, reasserts himself, 
 opposes it, and believes that he is its origin and end; 
 imagining even that he has lived without it (that is, 
 in a hypothetical state of nature). At this point the 
 ethico- juristic system begins, which is called the
 
 22 INTRODUCTORY SURVEY 
 
 "theory of natural law"; for it is founded on the reason 
 and experience of man more as an individual than as a 
 society. 
 
 Hugo GROTIUS is the author of this system. Though 
 partly foreshadowed by Bruno, he deserves credit for 
 his lucid conception of a primitive and natural juris- 
 prudence founded on reason itself, immutable, the 
 source of every other jurisprudence. It was a time when 
 the jurists venerated Roman Law as written reason 
 when the politicians publicly appealed to the right of 
 might when the Catholic theologians hoped to destroy 
 royal power in favor of divine papal authority, by 
 deriving the former from the people when the 
 Scholastics continued to weave subtleties and when 
 the Protestant theologians endangered human freedom. 
 
 Grotius developed the principles of the new science by 
 treating the important subject of peace and war. Here 
 the sad effects of an ignorance of the law of nature are 
 more deplorable than elsewhere. He begged those who 
 could remedy this miserable state of affairs to read his 
 book and learn his new ideas. The first writers on the 
 rights of war who had been illumined, as it were, by the 
 light of the law of reason, were the Milanese Giovanni 
 DI LIGNANO, Giovanni LUPO of Segovia (theologians 
 whom Grotius mentions), Martino GARATI of Lodi, 
 and Pietro BELLINI (counselor of the Duke Emanuele 
 Filiberto of Savoy, of Francis Ariasdemesa, and of the 
 Neapolitan Paris del Pozzo), all four of whom were 
 jurisconsults, and, above all others, Alberico GENTILE 
 (of whom Grotius makes honorable mention). Gentile 
 was the first to formulate a system of rules of warfare, 
 and to separate the notion of war and religion, placing 
 the former within the rigorous limits of law. However, 
 the law thought of by him is Roman and not rational. 
 Furthermore, he keeps his eyes on the single fact of war
 
 BACON, DESCARTES, GROTIUS 23 
 
 and pays little attention to peace, the normal condition 
 of humanity, so that he cannot put a just valuation on 
 the former. 
 
 Grotius defines natural law as the sum of the principles 
 of right reason by which we discern the wrongness or 
 rectitude of an action, through the discordance or agree- 
 ment of the action itself with rational and social nature. 
 The mother of natural law is human nature itself, which 
 prompts us to seek intercourse with our fellow-beings. 
 Natural law is immutable; it would exist even on the 
 hypothesis of the non-existence of God (to conceive of 
 which is a horrible crime). Law in its broad sense em- 
 braces morals; and law in the strict sense includes 
 imperfect and perfect right, capacities, and merits. It is 
 distinguished, however, from the art of allotting just 
 rewards to things pleasant and unpleasant, useful and 
 harmful, present or future that is, from politics. 
 This distinction, indeed, between law and politics had 
 been made clearly (although incompletely) some years 
 before Grotius, by the Cosentine, Giovanni DA PALAZZO 
 in his book on Government and the true rationale of 
 the State. 
 
 Natural law, however, is conceived by Grotius 
 solely as the right of individual man. Individual prop- 
 erty, as following the primitive community of goods, 
 is based by him on an express or tacit agreement. Intes- 
 tate inheritance is based on the natural estimate of the 
 will of the deceased. From the field of private law it 
 enters that of the State through contract. It is the duty 
 of natural law to protect agreements; those who con- 
 stitute the State promise by express or tacit agreement 
 to obey the majority, to whom the power is given. 
 Obligation by consent is the basis of all civil law, 
 according to the teachings of Grotius. The State, a 
 perfect body of free persons, united for the purpose of
 
 24 INTRODUCTORY SURVEY 
 
 enjoying their own rights through a common utility, 
 is the people, affecting a stability of powers and obli- 
 gations in a republic or an empire. The common sub- 
 ject of sovereignty is the State; political forms are 
 derived from common consent. From the consent of 
 the criminal, given implicitly by the criminal act, arises 
 the right of punishment. There are laws and powers 
 making for the exclusive advantage of certain classes. 
 There is an international law common to all nations. 
 The free development of the rights of society demands 
 free trade; therefore the prohibition of the entrance 
 of any product into a country is a just cause of war on 
 the part of the importing nation. A people cannot 
 prohibit the free transit of foreign merchandise since 
 it should not place obstacles in the trade between 
 nations. But the consent of nations justifies the restric- 
 tions of custom-houses or the prohibition of importa- 
 tion. The sea is free, for physical and moral reasons. 
 This double reason ceases in the case of a body of water 
 lying entirely within one nation's boundaries.
 
 HOBBES, SPINOZA, LEIBNITZ 25 
 
 V 
 
 HOBBES, SPINOZA, AND LEIBNITZ 
 
 HOBBES, LOCKE, BERKELEY, and HUME agree with the 
 philosophy of Bacon. 
 
 HOBBES admits only matter and motion; reduces 
 thought to sense; and derives sense from motion. He 
 accounts for the whole life of the spirit by the external 
 laws of association; thus he is looked upon by LEWES 
 and the modern psychologists of association as their 
 earliest predecessor. Like Grotius, he begins with the 
 nature of man; but he differs from Grotius in saying 
 that it is founded on egoistical tendencies and not on 
 the social desire for the general good. Society is sought 
 through self-love, not through love of others. The 
 origin of the great and enduring societies is not recip- 
 rocal benevolence but reciprocal fear. In the state of 
 nature, there was a constant struggle, every man against 
 his neighbor, through cupidity and the inter-collision 
 of rights; for each man had a right to everything. Now 
 the law of nature is the instinct of self-preservation ; thus 
 was felt the need of growing out of this state of inse- 
 curity and of finding peace. Unlimited fear forced men 
 to transfer by agreement all their rights and powers 
 to a civil committee; this is the origin of the civil con- 
 tract. Thus an absolute empire was formed, destined 
 to define the honest and the just, and to decree what 
 must be believed. Honesty, justice, and religious beliefs 
 are the product of social laws. Hobbes, like Grotius, 
 believes in the principle of human nature in its individual 
 form, and makes everything depend on contract the 
 begetter of natural law. 
 
 LOCKE combats the innatism of Descartes. He tries
 
 26 INTRODUCTORY SURVEY 
 
 to prove that the intellect is a blank tablet ("tabula 
 rasa") on which the senses print characters. Our ideas are 
 born of sensation and reflection; reflection elaborates 
 the data of sensation, uniting, separating, abstracting, 
 and generalizing. The idea of substance is a collective 
 idea and does not express entity because we perceive 
 only the methods the ego is found by reflection only 
 in its world of thought and not in substance. The 
 entity of the ego lies in the continuity of representations 
 and not in its real unity. If there are substances (and 
 perhaps there may be), they must remain unknown 
 and unrecognizable to us. Locke makes the validity of 
 conduct consist in the conformity or non-conformity 
 of an action to the law, which operates through the power 
 of the law-giver, to punish or reward us. He departs 
 from the hypothesis of the state of nature, in which 
 there arises (his philosophy differing here from that 
 of the other philosophers) a comprehensive system of 
 rights to life, liberty, and property, and of punish- 
 ment (to a limited extent, a power of the individual). 
 In his opinion, the State grows out of contract and makes 
 for the protection of the individual. He admits the prin- 
 ciple of the sovereignty of the people, as a consequence 
 of which he thinks that the people should make the 
 laws and the princes obey them. Finally, he believes 
 in the separation of Church and State. 
 
 Locke's division of power into legislative and execu- 
 tive, the former belonging to the people and the latter 
 to the kings, leads to the constitutional doctrine which 
 was soon to be formulated by Montesquieu. This 
 philosopher, who outlined the perfect mechanism of the 
 elements of representative government, as exemplified 
 in the English Constitution, was the first to propound 
 the theory of the division of powers into legislative, 
 executive, and judiciary, with its corollary that one
 
 HOBBES, SPINOZA, LEIBNITZ 27 
 
 power would restrain the other, acting reciprocally as 
 check and countercheck. He is also the creator of his- 
 torical climatology; but he exaggerated its significance; 
 for (as Comte said) Montesquieu failed to perceive that 
 in some instances history shows variations, while climate 
 remains uniform; and he thus lacked a true conception 
 of progress. Montesquieu did not concern himself with 
 the philosophy of law; yet his book is one wherein (as 
 he says) every nation can find the reasons, on which 
 its maxims of jurisprudence are based. Of the work 
 of Grotius, so popular in his day, Montesquieu makes no 
 mention; and in the three places in the "L'Esprit des 
 Lois," in which he speaks of natural law, he is really 
 treating of morals. 
 
 Locke bases knowledge on perception; he teaches 
 that we learn only the methods; he lays stress upon the 
 objects whose substance we cannot perceive. BERKELEY 
 is more coherent. For, starting with the premises of 
 Locke, he shows that basically only ideas are real and not 
 things, because the reality of the former is created by 
 our very perception. The true being of things is its 
 perception, and in the perception lies their reality. 
 
 HUME completes the work of Locke and Berkeley, 
 making a criticism of the concept of causality. In his 
 opinion causality is not an object of sensation, percep- 
 tion, nor deduction. It is not an object of perception, 
 because it lacks a corresponding impression, experience 
 giving us the simple conjunction of two facts and not 
 their connection. Neither can it be discovered by the 
 analysis of a concept, because this includes logical 
 notes and not existence. In other words, one cannot 
 discover the real existence of the effect from the mere 
 causal conception; that is a logical proof but nothing 
 more. On the other hand, it is not a subject for deduc- 
 tion, because there is no medial term between cause
 
 28 INTRODUCTORY SURVEY 
 
 and effect. Causality, therefore, has no scientific value, 
 and we must doubt everything except mathematics, 
 because everything presupposes a cause, with that one 
 science excepted. Causality rests in habit, in dogma, 
 and in expectation. With the repetition of one fact in 
 sequence to another, we believe, or have faith that the 
 first is the cause, the latter the effect. Even if this 
 dogma or expectation has no theoretical value, it is a 
 more than sufficient norm for life and conduct. 
 
 MALEBRANCHE, SPINOZA, and LEIBNITZ are followers 
 of the Cartesian philosophy. In the mind of Descartes, 
 the idea of God was innate in the human soul. Male- 
 branche, the Cartesian Averroes, again puts the origin 
 of thought in a region outside of man and affirms that 
 knowledge is an intuitive influent, a vision of the idea 
 of God. Extension, opposed to thought, is thinkable 
 because it is seen in God. God is the sole cause that 
 works in reality; his creatures are occasions of divine 
 action. Thinking that truth lies in God, we can love 
 and work with Him. Man should take for a norm of 
 his conduct the relations of perfection that exist in things; 
 relations constituting the content of that love with 
 which God loves Himself. 
 
 SPINOZA tries to reconcile the opposition between sub- 
 stances of extension and of thought (which Descartes 
 admits, and which Malebranche believes eliminated 
 by the intuition of extension in God) by the presup- 
 position of a single substance of which thought and 
 extensions are attributes. He unites extension and 
 thought in a single unity, which is indifferent of itself, 
 in substance or nature, and includes all reality (as the 
 Cartesian philosopher says that the idea of substance 
 involves its existence). Substance is active, self-causal, 
 and develops in the two infinite attributes of extension 
 and thought. Each of the attributes expresses sub-
 
 HOBBES, SPINOZA, LEIBNITZ 29 
 
 stance of its own mode, through an infinity of methods. 
 Each is unconnected with the other. The modes of 
 the two attributes have no reciprocal causality, but 
 correspond and are parallel. Substance, with the two 
 attributes, is "natura naturans," and the universe is 
 "natura naturata" and is also infinite, while the par- 
 ticulars are simple modes. Substance is not determined 
 by anything but itself. It is free ; man is not free because 
 he is a mode limited and determined by other modes. 
 Man is a natural force with the illusion of freedom. 
 The modes, particular objects, are ideas and bodies. 
 We, qua spiritual, are the cause of ideas, and qua cor- 
 poreal, are the cause of passions. In respect to ideas, 
 we are active, if they are adequate and fully comprehend 
 their object; in respect to passions, we are passive 
 because they are derivatives of our and other bodies ; 
 and of neither one nor the other have we full conscious- 
 ness. Passivity consists always of inadequacy, obscu- 
 rity, and confusion of ideas. Man, qua mind, is free 
 from sentiments, affections, and passions, because he 
 knows God and the necessary connections of things, 
 reaching adequate cognition by love of God. 
 
 Every entity strives for the preservation of its exist- 
 ence; man also has this tendency, in which the ethical 
 principle is found. Law is the power of the nature of 
 man, that is, the force by which he perseveres in his 
 existence. The law of nature is the very power of nature. 
 Man's right is equal to his power as a cause or force. 
 The greater union gives greater force, and therefore 
 greater right; whence the great power of the State, 
 the result of the alienation of the powers of many. The 
 object of the State is to stop the terrible struggle between 
 men due to their conflicting passions and interests. 
 It is founded on agreement; but this does not result, as 
 Hobbes says, in the transference of all the rights of
 
 30 INTRODUCTORY SURVEY 
 
 the individual to the State; for whatever is not subject 
 to force does not become subject to the State (acts, 
 therefore, can be controlled, but neither opinions nor 
 creeds). 
 
 LEIBNITZ tries to reconcile the Cartesian dualism be- 
 tween the substances of thought and extension (which 
 Spinoza attempted to eliminate through the principle 
 of one substance with two infinite attributes) . He shows 
 that all substances are forces, and therefore active and 
 not inert. He believes that all substances are represen- 
 tative, in that they are the result of monads, which 
 are not physical atoms, but metaphysical points, unex- 
 tended elements, unmodelled, indivisible, indestructible, 
 impenetrable, and capable of perception and repre- 
 sentation. Each monad is a simple force with a special 
 original determination, not derived from without, 
 having within itself the representative scheme of the 
 universe. Bruno, the author of the monad theory, 
 known to Leibnitz, says that each monad is a contracted 
 universe. A monad as an active substance represents 
 itself, and as an individual and limited substance it 
 represents the others. In the doctrine of Leibnitz, 
 there is not one substance but as many substances as 
 there are forces. 
 
 From substance, which is the whole, he contradis- 
 tinguishes the simple monad, with its representative vir- 
 tue, developing through three progressive grades. For 
 representation begins with simple and obscure being, 
 it becomes clear when joined with sensation, and distinct 
 when accompanied by knowledge. The power of the 
 monad to pass from one conception to another is con- 
 nected with this graduation. This power is a special 
 activity in living beings, instinct in animals, will in 
 man. In the monad, there is a continuity of states. 
 In the spirit monad, the state of conscious knowledge
 
 HOBBES, SPINOZA, LEIBNITZ 31 
 
 is a derivative of the state of unconsciousness and there- 
 fore the will is determined by the unconscious states 
 and cannot be caprice. The life of the spirit is that grad- 
 ual passage by infinitesimal steps from unconscious- 
 ness to clear and distinct knowledge. Each monad 
 has a special disposition peculiar to it frorn the beginning; 
 it contracts the universe in its own manner, and in con- 
 formity with its disposition, it develops through a con- 
 tinuous succession of states. No monad is born of 
 another or exerts any influence over another, but between 
 them there is a fixed harmony from God. 
 
 Mind presupposes (teaches Leibnitz) sensible repre- 
 sentation, but is not its cause. It is not a blank tablet, 
 but rather a containing energy virtually the principles 
 of identity and of sufficient reason, distinguished as 
 causality and finality. The identity looks to the monad 
 in itself. The sufficient reason has to do with the 
 harmony between all the monads. The principle of the 
 sufficient reason is the base of the concrete sciences, 
 and therefore of morals and law. The spirit is mind and 
 will ; will is a conscious tendency and makes for happiness. 
 Through clear and distinct cognition, the spirit feels 
 that it is an element in a great whole and that it has the 
 duty of acting so as to further the common good. Only 
 through clear and distinct knowledge comes the tendency 
 to the generally useful. Law is founded on the essence 
 and not on the will of God, and is manifest in the form 
 of rigid law, of equity, and probity. The first consists 
 in commutative justice and is founded on the precept 
 of "Do no wrong." The second is based on distributive 
 justice and on giving each his due. The third is connoted 
 by the maxim of "Live honestly." The object of law 
 is perfection. Every kind of community proposes the 
 happiness of man as its object,, The State looks espe- 
 cially to the good of external security. The practical
 
 32 INTRODUCTORY SURVEY 
 
 idealism of the Leibnitzian system consists in a commun- 
 ity of spirits in immediate dependence on God, placed in 
 the sphere of morals, with concentric circles comprehen- 
 sive of rights. It resembles the Stoic Republic. Chris- 
 tian principles interpenetrate with Greek philosophy in 
 an attractive manner; but we must remember that Leib- 
 nitz began with pure rationalism and then turned to 
 eudemonism, and ended in the confusion of morality 
 and religion.
 
 PUFFENDORF, WOLFF, ROUSSEAU 33 
 
 VI 
 
 PUFFENDORF, THOMASIUS, AND WOLFF 
 ROUSSEAU 
 
 PUFFENDORF, who coupled in a somewhat arbitrary 
 manner to the Cartesian philosophy his theory of natural 
 law and of the law of nations, makes clear the psychologi- 
 cal basis of law and the theory of imputation (erstwhile 
 the doctrine of Grotius). But his development of his 
 doctrine is neither profound nor exact; because he 
 pleads especially for the interpretation of the social 
 instinct (admitted by Grotius), not as benevolence 
 but as common need, and because of his confusion 
 of morals and law (not found in the works of Grotius) 
 and his tri-division of morality into duties towards 
 God, our neighbors, and ourselves. Puffendorf's con- 
 ception of law is inferior to that of Grotius, because 
 law and all that is honest depend, according to him, on 
 the will of God and on divine imposition. Leibnitz 
 does not think highly of this philosopher and very 
 seldom mentions him in his work on natural law. The 
 followers of Puffendorf are BARBEYRAC, BURLAMAQUI, 
 and DE FELICE. Barbeyrac, a most erudite man (of 
 whom it was said, in looking at his notes on Puffendorf 
 and Grotius, that it was difficult to decide whether 
 greater genius was required for the creation of the 
 systems than for their annotation) is not clear in his 
 understanding of rational law, though he gives it a 
 new development and illustrates scientifically the dif- 
 ference between morals and law. In Burlamaqui, 
 we find traces of Barbeyrac, and a blind obsequiousness 
 to Puffendorf's ideas. De Felice is distinguished for his 
 writings on public European law and for his biblio- 
 graphic notes of the writers on the philosophy of law;
 
 34 INTRODUCTORY SURVEY 
 
 but he adds nothing to the system of his author and 
 principal followers. He was ignorant of the attempts 
 of the German philosophers to distinguish morals and 
 law, begun before the death of Burlamaqui. 
 
 The works of Grotius and Puffendorf met opposition 
 on all sides. The Romanists, even more irate than the 
 theologians, accused the philosophers of aiming to 
 create for equity an intellectual dominion over the 
 world's greatest achievement that is, Roman law; 
 although the nature of this cerebrine equity was a thing 
 about which they themselves could not agree. The 
 theologians, especially the Protestants, confuse rational 
 research in law with atheism. Both make much of 
 the discords of the schools of natural law. SELDEN, 
 not wishing to base natural law on reason, states that 
 law is a derivative of the nature of God ; that it is partly 
 obligatory and partly permissive ; and that the divine 
 laws, which all must obey, are revealed in the Scrip- 
 tures. Puffendorf, LECLERC, and Barbeyrac are almost 
 unanimous in their criticism of Selden, because he deduces 
 the principles of law from the Decalogue and especially 
 from Judaic tradition. COCCEIUS agrees with Selden 
 for polemic reasons, but has a superior principle, from 
 which he derives juridical precepts directly that is, the 
 divine will, known from its acts or inferable from the 
 perfection of the divine essence, without reliance on 
 revelation. 
 
 THOMASIUS founds law on reason, independent of all 
 revelation. He admits a state of nature, which was 
 neither a state of war nor one of peace, but was a chaos. 
 Human actions should depend upon a norm; and law 
 is the norm for external actions and the guaranty of social 
 peace. Thomasius avails himself of the three grades 
 of law made by Leibnitz to show the separation of law 
 from morals in his belief that moral duties are incoer-
 
 PUFFENDORF, WOLFF, ROUSSEAU 35 
 
 cible or imperfect, and secure internal peace, while the 
 legal duties are coercible or perfect, and secure external 
 peace. A consequence of this is that the State should 
 abandon the moral and religious sphere to free conscience. 
 Thomasius, after indicating the various meanings of 
 the phrase "the law of nations," observes that there 
 cannot be a true law among nations, because there is 
 no higher authority that can enforce its obligations. 
 It is clear that in this he differs from Grotius and takes 
 a backward step. 
 
 WOLFF explains philosophy systematically for the use of 
 the schools, and follows the doctrines of Leibnitz. He 
 does not accept all of them, however, without some 
 modifications; for example, he does not believe that 
 all the monads have representative virtue (which accord- 
 ing to him is an attribute only of the spirit monad). His 
 ethical principle, the result of an organic concept of the 
 world and of the teachings of Leibnitz, is perfection. 
 Wolff speaks of perfect and imperfect duties, but he does 
 not define their difference. He does not supply, like 
 Thomasius, a criterion for their separation and distinction. 
 Morals and law, therefore, are again confused, and 
 science from that point of view takes a retrogressive step. 
 Wolff thinks that he derives natural law from the human 
 essence by a rigorous deduction. The law of nature 
 imposes the duty of doing all that tends towards the 
 perfect and good. Natural law, founded on the nature of 
 man, is the law of what he should or should not do. 
 Natural law has its ultimate foundation in God, because 
 God is the author of the order of things or of the order of 
 nature. The Wolfnan principle should not be inter- 
 preted in a too individualistic sense. For it holds 
 that good actions tend either to the preservation of es- 
 sential, or to the acquisition of accidental perfection, or to 
 the consummation and perfection of mankind, more
 
 36 INTRODUCTORY SURVEY 
 
 especially of the family, nation, or State. Wolff and his 
 disciple, VATTEL (following the way trodden by Grotius 
 in the field of international law) assign absolute author- 
 ity to positive law, but recognize the natural law of 
 individuals and nations as its source. Among the 
 Italians, LAMPREDI believes that it owes its origin to this 
 source (thus following Wolffian doctrines). He goes so 
 far as to say that if a law between armies could be 
 defended, his pen would take up the task, and cites naval 
 warfare in treating of the great principles of humanity. 
 Lampredi (like Wolff) supplies no criterion of the differ- 
 ence between morals and law. He considers natural law 
 as the comprehensive formula of natural laws, tending 
 towards happiness and perfection, but he does not 
 show of what it consists. He introduces and discusses, 
 in the science of law, hypotheses and theories of ethics, 
 as, for example, the hypothesis of a God who is judge 
 of actions, and the analysis of moral imputability. 
 Law, in Lampredi's mind (since he is a follower of Wolff), 
 is the faculty of availing oneself of what is necessary for 
 the fulfillment of obligations which may be universal, 
 primitive, and innate, or particular, derivative, and 
 hypothetical. Ownership presupposes, according to 
 both authors, a positive community of things, and owes 
 its origin to the appetites of animal life. Lampredi devel- 
 ops the doctrine of contract in exactly the same manner 
 as Wolff, in the discussion of society as a consensual con- 
 tract, thus opening the way to the discussion of society 
 in general, which is founded on the consent of him who 
 creates laws and government. And here Lampredi's 
 chief error is apparent, that is, his failure to distinguish 
 the principles of public from private justice; an error 
 in that time common to the greater number of writers on 
 natural law. 
 
 Hume represents the complement of Baconian philos-
 
 PUFFENDORF, WOLFF, ROUSSEAU 37 
 
 ophy, as Leibnitz represents that of the Cartesian. 
 French Sensualism and Materialism, the general consen- 
 sus of the Scotch philosophers, and German Syncretism 
 of the past century, add nothing new in the sphere of 
 speculation. French Sensualism originated in the 
 doctrine of GASSENDI, a contemporary of Bacon and Des- 
 cartes. Gassendi says that the only source of our ideas 
 is sense; that the certainty of our being is not born of 
 thought only, but also of sensible facts ; but he can form 
 no notion of substance. Later, after Locke, CONDILLAC 
 reduces to mere sensation the origin of consciousness, 
 sensation, and reflection, and shows that the life of the 
 spirit is nothing but transformed sensation. BONNET 
 and HARTLEY laid stress upon the sensations, in that 
 they are reproduced, associated, and preserved under the 
 laws of motion. LAMETRIE and HOLBACH express the 
 principles of materialism in a clear and popular manner. 
 The "I think, therefore I am" of Descartes became the 
 "I feel, therefore I am" of Saint Pierre. Ideology, through 
 the work of TRACY, became confused with zoology. 
 The moral sciences are considered by CABANAS (who 
 speaks of intracranial reflection and thought as secre- 
 tions of the brain) as parts of natural history. Freedom 
 is a supra-intelligible power, and the will wills as fire burns. 
 Locke maintains that man is urged to work not 
 through cognition but through internal discomfort. 
 This consists of a feeling, and therefore we must alter 
 the foundation of ethics. Ethics are no longer based on 
 reason but on feeling, in the teaching of the English 
 moralists. Emotions and not ideas are the motives 
 of work; and the criterion by which we measure actions 
 is a special sense the moral sense. This sense is not 
 original (say some of the writers of the English school), 
 but is derived from certain external elements. It is 
 formed step by step, and is refined, appearing in all
 
 38 INTRODUCTORY SURVEY 
 
 its grades as a product of psychological association. 
 Through association and habit egoistical acts become 
 moral ; because one begins by wishing another's good for 
 one's own ease and pleasure, but ends by wishing it for 
 itself without other motive. To such conceptions 
 (more or less) can the theories of SHAFTSBURY, BUTLER, 
 HUTCHESON, Hume, and ADAM SMITH be reduced. Smith 
 says (in accord with Hume) that the judge of moral- 
 ity is the impartial spectator, and that the basis of 
 judgment is sympathy. Sympathy with him who 
 receives a good or bad action results not only from 
 participation in another's pleasures and pains (according 
 to the writings of Hume), but also from partaking of the 
 stimulus of rendering good for good and evil for evil. 
 In this lies the principle of social justice. 
 
 Hume says that in morals the subjective element is 
 feeling, the objective element utility. HELVETIUS founds 
 conduct on egoism, on individual pleasure and utility. 
 BENTHAM (who is by nature not a philosopher but a 
 legislator) looks to the general utility alone, and makes 
 it the basis of ethics, without that psychological analysis 
 of principles which Hobbes and the other English moral 
 philosophers make. Believing ingenuously in the orig- 
 inality of his doctrines (which belief showed him 
 unacquainted with philosophical thought), the pursuit 
 of pleasure and the avoidance of pain constitute in his 
 mind the motives of action. In this, he is in accord with 
 Hobbes and Locke, though he believes that such a 
 principle cannot be demonstrated. Bentham op- 
 poses the systems which place the criterion of conduct 
 outside the calculation of consequences, and builds up 
 a moral arithmetic and social dynamics. 
 
 The SCOTCH philosophers base certitude on internal and 
 inexplicable suggestion and make common sense (the 
 extension or amplification of the moral sense) the measure
 
 PUFFENDORF, WOLFF, ROUSSEAU 39 
 
 of truth. The GERMAN philosophers of the Renaissance 
 (the epoch of so-called sane or popular philosophy, 
 a little anterior to Kant) waver between the empirical 
 movement of Locke and the idealism of Leibnitz, inclin- 
 ing towards scepticism. 
 
 ROUSSEAU admits all the presuppositions of the system 
 of natural law that is, the basic freedom of individual 
 man, the state of nature, the formation and destruc- 
 tion of the State by contract, the rights of individual 
 defense and utility and therefore the maxim of popular 
 sovereignty. (To these Sidney and Locke had already 
 added the right of rebellion; this had its origin in the 
 belief in the rights of the Christian community in ec- 
 clesiastical affairs, and was brought to perfection in the 
 papal interest by the Jesuits, who, in their desire to over- 
 throw civil power, taught that it was born of the will 
 of the people while pontifical authority came from God.) 
 Rousseau gives to the system of natural law a new 
 attribute, lacking in Grotius and in later writers, 
 that is, the inalienability of freedom. He repudiates the 
 usual view of individual freedom and does not hesitate 
 to place Grotius together with Hobbes among the 
 champions of human slavery. Accepting the principle 
 of inalienable freedom, Rousseau, to solve the problem 
 raised by it, discovers a kind of political union, in which 
 freedom is not alienable. Every man, in obeying the State, 
 obeys himself, with a full and reciprocal renunciation 
 of all individual rights in favor of the community ; hence 
 his doctrine of the "general will," the inalienable, in- 
 divisible, and non-representable sovereignty, and hence 
 his criticism of the mechanical, constitutional regime. 
 Rousseau recognizes representative government in 
 the exercise of executive power only; this, under 
 a system of restraints, can be entrusted to a king 
 or commission. The object of the activity of the
 
 40 INTRODUCTORY SURVEY 
 
 State is public good (understood in an abstract manner 
 and not in the sense of the good of all) under various con- 
 ditions of life, but in a uniform mode. Later philos- 
 ophy has of course shown us that Rousseau's state of 
 nature is an hypothesis contrary to reason and experi- 
 ence; that contract, its prerequisite, is not possible 
 without the State's guaranty; that law is and must be 
 existent, while contract need not exist; that to obtain 
 this supposed uniformity of interest and hypothetical 
 equality, it would be necessary to remove not only the 
 difference of legal conditions, but the indefinite variety 
 of all the elements of life as well ; and that to admit a 
 distinction between the general will, and the will of all, 
 would set the latter free from every rational bond. 
 
 The French Revolution realized the system of natural 
 law, as taught by Rousseau. It was not a sudden move- 
 ment, but the result of a long preparation into which 
 many factors entered. The new man evolved by the Mid- 
 dle Ages, the Renaissance, the Baconian and Cartesian 
 philosophies in all their phases, the religious wars, 
 the English Revolution, the English philosophical doc- 
 trines, the progress of the American government, the 
 abuses of the past, and the Encyclopedia, all contributed 
 their quota. Similar elements in the less civilized nations 
 found in France a favorable place to concentrate and 
 strike the great blow. With the "general will" separated 
 by Rousseau from all ethical essence and law, the 
 Revolution sought liberty (not within but beyond 
 all limits), and destroyed all secular obstacles opposed 
 to the development of men. Liberty, now become 
 untrammeled caprice, soon felt the need of re-establish- 
 ing limitations; and various reconstructions appeared in 
 all branches of human activity. But all were the tem- 
 porary illusions of fancy.
 
 VICO 41 
 
 VII 
 VICO 
 
 Vico is the author of the only new movement "(with 
 the exception of Kant's) since the days of Hume and Leib- 
 nitz. Principles (he says) govern the origin, development, 
 and termination of facts. Providence, which is, in the 
 last analysis, mind or thought, develops first in the 
 natural and then in the human order that is, first 
 as natural, then as human providence. Providence is 
 not a transcendent or extramundane principle, but is 
 immanent and intrinsic in cosmic reality and history. 
 Such a principle develops first in nature and then in the 
 spirit; first in the natural world, then in the world of 
 human reason; whence the double motion of entities 
 from thought, their beginning, towards thought, their 
 end, a progress and regress, a double cycle. Science 
 cannot enter the immediateness of thought, as Des- 
 cartes believed, because the nature of things is nothing 
 but a stage in history. The immediateness of thought 
 does not reveal the cause of that relation of the certain 
 and the true which science desires. From the certain, 
 step by step, comes the true; the mind learns the true 
 from the certain. The certain is part of the true. It is 
 one of its extrinsifications, and therefore the true is 
 contained in the certain. The true is the idea, the certain 
 is the actual or reality. 
 
 The conception of immanent Providence, towards which 
 his "Diritto Universale" pointed, is clearly shown in the 
 "Scienza Nuova," but not in "Dell' Antichissima Sap- 
 ienza degli Italiani," in which Providence is supramun- 
 dane and analagous to the Platonic idea of the good. 
 This book (the first manifestation of his genius, which
 
 42 INTRODUCTORY SURVEY 
 
 aimed at the reconstruction of history from the rich 
 field of Linguistics) contains two suppositions, 
 which Vico himself later abandoned: The wisdom of 
 our ancient ancestors, later called by him "the pride 
 of nations and the learned" ; and the invention by man of 
 mathematics alone a restricted application of the 
 important principle of the conversion of the true with 
 the actual. In the "Diritto Universale" and "Scienza 
 Nuova" he holds that man is the author not only of 
 mathematics but of all the sciences, which develop with 
 the history of human ideas, that is, of the civil world 
 (with its principles lying in the modifications of the 
 human mind itself), and of religion (which changes with 
 the development of the mind; for the ancients, with 
 robust senses and vast imagination, pictured God ac- 
 cording to their idea). 
 
 Man is knowledge, will, and power. His power is 
 bounded only by his will, and his will by his knowledge, 
 but mind is the principle. In mind, man is first sense, 
 then imagination, and lastly reason, and therefore his his- 
 tory must run through three ages, the divine, the heroic, 
 and the human. To knowledge, will, and power, cor- 
 respond ownership, freedom, and perfection the three 
 elements of the law-idea, derived from the force of reason, 
 which acts against cupidity as an ethical virtue and looks 
 to equalizing the useful among men by means of law. 
 Law has the useful as its occasion but not its cause. 
 Ownership, freedom, and perfection make authority, 
 which is monastic, economic, and civil. From owner- 
 ship, freedom, and perfection are derived the three forms 
 of government monarchy, democracy, and oligarchy. 
 
 The science of law is based on reason or philosophy and 
 on authority or philology. It considers the true and the 
 certain, that is, reason and authority; authority is part of 
 reason and not of caprice ; the certain is part of the true.
 
 VICO 43 
 
 Hence the distinction between the rationale of law, which 
 looks to the true, and its reason, which looks to the certain ; 
 hence also the union between rational and positive law. 
 Positive law, when the distinction between the true and 
 the certain is understood, is seen to be not entirely 
 identical with nor entirely opposed to the rational. It real- 
 izes ideal law according to the laws of the development 
 of knowledge, or temporal evolution. It is, therefore, 
 in its arboreal state, violence, which afterwards is sub- 
 jected to restraint, and finally attains perfection through 
 absolute truth and generous reason. The best law is 
 not strict, ironclad, and cramped, but like that of the 
 oligarchs in the early governments and under the 
 Quirites in Rome. At Rome it was just and exemplary 
 before the Twelve Tables, rigid under the Republic, 
 benign under the Emperors, becoming divine again, as 
 in the first ages, when it sprang from customs deep- 
 dyed with religion and piety. 
 
 Government at first lay in the power of family mon- 
 archies and then passed into the hands of the heroic 
 oligarchies and later to the people in popular republics, 
 but finally returned to the individual in the civil monar- 
 chies. Mixed forms are born of the need of fostering the 
 people's faith in the government. Law at first was 
 seen in custom; then in legislation. Grotius, Selden, 
 and Puffendorf are wrong in beginning at the first ages 
 of uncivilized nations, and with men enlightened by a 
 natural reason fully developed that is, from the 
 period in which the philosophers began to develop a true 
 idea of philosophy. With the beginning of nations 
 began the subject-matter of the natural law of people. 
 Grotius was wrong, too, in saying that we should attrib- 
 ute the origin of feuds to the barbarians, because feuds 
 date back to the earliest people; they were ancient 
 before Homer and the days of the Heroes.
 
 44 INTRODUCTORY SURVEY 
 
 Vice's doctrine about the relation of reason and author- 
 ity, of the true and the certain, and his criticism of the 
 representatives of the abstract school of jurisprudence 
 (that is, of the principles of natural law, from a number of 
 which it would be necessary to exclude Selden, who aban- 
 dons rational criticism and allies himself with theologi- 
 cal data) show the broadest conception of law. In fact, 
 if the certain is part of the true and authority is part 
 of reason, law, on the one hand, cannot fall into that 
 historical relativism which lies more in the "fieri" than 
 in the "esse," denying the ideal and constant elements 
 of right; on the other hand, it will be no longer possible 
 to conceive of law as an abstract ideal without a history, 
 as a truth without a relative certainty. We must remem- 
 ber that science, according to Vico, should develop with 
 the history of human ideas, and therefore the idea of 
 law without history would not be human. 
 
 Vice's criticism of the opinion of Grotius on feuds 
 comes from his conception of the progress and regress 
 of times and institutions the denial of a history which 
 moves not only constantly but variously and progres- 
 sively. The concept of progress and regress prevents 
 Vico from fully realizing the deep significance of Chris- 
 tianity; he is like Polybius, Machiavelli, and the Egyp- 
 tian philosophers. MARIUS PAGANUS (who deserves credit 
 for showing the influence of foreign causes in Vico's 
 doctrine) falls into the same error. 
 
 Machiavelli is not a mere follower of Epicurus. He be- 
 lieves (contrary to Livy and Plutarch) that the greatness 
 of Rome was the result of worth, notwithstanding that 
 the reward of merit is given by fortune. He does not fully 
 accept the mechanical hypothesis. We must note that 
 the unscrupulous (some call it "diabolical") nature of 
 the advice given in Machiavelli's "Principe," and the 
 sincere admiration of the hermit of Saint Casciano for
 
 VICO 45 
 
 Caesar Borgia, are not, if one accepts the ideas of Vico, 
 necessarily inconsistent with this reliance on the workings 
 of an all-rewarding Providence. The same Providence (in 
 Machiavelli's scheme of life) out of bestial lust developed 
 the chastity of marriage, out of the abuse of seignorial 
 liberty brought popular freedom, out of the disso- 
 luteness of peoples the control of the stronger nations. 
 Through the instrumentality of Polyphemus it spread 
 obedience in mankind; by means of the proud Achilles 
 and the just Aristides alike, it paved the way for popular 
 liberty; it established monarchy through Tiberius 
 (a sorrowful man, much given to meditation). And 
 so may not Caesar Borgia himself have been a sorrowful 
 man, much given to meditation, and endowed with 
 the qualities necessary in that age of corruption to make 
 Italy a State? In many places in the "Scienza Nuova," 
 Vico advances a criterion of political morality very 
 different from that which governs in other spheres of life.
 
 46 INTRODUCTORY SURVEY 
 
 VIII 
 KANT 
 
 KANT believes that knowledge is a complex fact, 
 the result of rational and sensible elements; and that 
 it must be considered in its integrity, and not in one of 
 its parts, as Locke and Leibnitz considered it. Locke 
 tried to solve the problem of knowledge by the considera- 
 tion of the single factor of sense; Leibnitz on the other 
 hand based all his theory on the other factor, mind. 
 Kant's object is to unify these two movements. In his 
 belief, time and space are not concepts, but intuitions of 
 sensibility. Space is the form of external and time of 
 internal sensibility. There are, however, these two 
 intuitions or forms of the primal reception of various 
 sensibilities, of which there is no corresponding object 
 without ourselves. Experimental knowledge is possible 
 under certain a priori conditions through the categories 
 of pure and original concepts, constituting the functions 
 of the mind itself applied to empirical intuitions. It is 
 an a priori synthesis, in that the categories are ideal cen- 
 tres about which phenomena group, because objects 
 are understood as they appear, and not of themselves. 
 The phenomena and the concepts intercommunicate 
 between themselves. There is an original synthetic unity 
 of intuition and category. This unity makes knowledge 
 possible and is its chief foundation. The objects not 
 given by experience, for example, the soul, the world 
 and God, are not knowable. The possibility of knowledge 
 of an object lies in its power of being experienced; 
 and to the three above ideas there are no corresponding 
 intuitions. The three ideas are not knowledge, but are 
 rules to bind the absolute, which is not given by experi-
 
 KANT 47 
 
 ence. For the absolute must exist. It is a demand of 
 reason, but the science of the supra-sensible is entirely 
 eliminated from the "Kritik der Reinen Vernunft." 
 
 In knowledge, there are the two elements noted above, 
 the data of sense, and the category; in morality, likewise, 
 are found emotion, or sensible stimulus, and moral law. 
 Morality is the autonomy of will, as pure reason free 
 from all prejudice, emotion, or passion. The heterono- 
 mous will, which is determined by secondary selfish 
 objects and generally by sensible stimuli, is not moral. 
 A desire of happiness, or a resolution under even a noble 
 passion, such as Christian charity, clouds the purity of 
 the will. The good should be desired per se, independent 
 of every extrinsic consideration. The categorical imper- 
 ative is that the motive of action should be one with the 
 law, and should be the principle of universal legislation. 
 Morality is pure will. To it all our acts should conform. 
 The will, determined of itself, is an end for itself, and 
 therefore the categorical imperative demands that the 
 will be always treated as final and never as medial. 
 The categorical imperative is absolute, comprehending 
 pure and unlimited will; whence it follows that the 
 absolute of the "Kritik der Praktischen Vernunft" must 
 exist. Reason demands its existence. Freedom, the im- 
 mortality of the soul, and the existence of God, are 
 three postulates of "Practical Reason," three presupposi- 
 tions of ethics, and not knowledge. Free will is not an 
 object of cognition. It should presuppose the latter, in 
 order to be moral. Since there is a relation between virtue 
 and the time necessary to obtain it, the immortality 
 of the soul must be admitted. The harmony between 
 virtue and happiness implies the existence of God. 
 
 Kant lays bare the original synthetic unity of in- 
 tuition and the category of the real and the ideal, 
 of nature and mind ; but he does not succeed in explaining
 
 48 INTRODUCTORY SURVEY 
 
 it. He does not reconcile the two terms, and in the 
 "Kritik der Reinen Vernunft," with the presupposition 
 of the unknowable, he enters the confines of abstract, 
 empty, and formal thought. And in the "Kritik der 
 Praktischen Vernunft," he does not overcome formalism, 
 because morality is a pure form of reason, alien, and 
 therefore contradictory to any kind of emotion or in- 
 terest. The categorical imperative, as formulated, does 
 not in the least prescribe what must be done to be 
 honest; it lacks concrete content. 
 
 As the "Kritik der Reinen Vernunft" fixes the condi- 
 tions, laws, and limits of knowledge, so the "Kritik der 
 Praktishen Vernunft" deals with fundamental notions of 
 a practical order. Such notions are moral and juristic, 
 and constitute in their complexity the metaphysics of 
 custom a science built up by the mind of Kant alone. 
 Morals differ from law, Kant thinks; because the former 
 have to do with internal acts and intention, and can com- 
 mand in its own manner what law commands; while 
 the latter, excluded from the realm of intention, embraces 
 external acts and cannot enforce moral precepts. Here the 
 separation and opposition of morals and law in the Kan- 
 tian system are made clear, for since he has not com- 
 pletely grasped the ethical idea, it cannot appear to him 
 as their common source. 
 
 Law, in Kantian philosophy, partakes of the general 
 defects of his system, in being formal. It is the sum 
 of conditions under which everybody's unbridled freedom 
 can coexist with the liberty of all, thanks to a universal 
 law; but of exactly what this sum and this universal 
 law consist, Kant does not tell us. The essence of law, 
 as he analyzes it, is limitation and coexistence. It 
 would be useless without a power of enforcement. 
 Law is private and public. Private law regards property 
 and includes corporeal objects, obligations, and the
 
 KANT 49 
 
 status of individuals (whence the division of law into 
 real, personal, and mixed). Public law is the guaranty 
 of private law. Reason forces us to pass from the nat- 
 ural state (which, in Kant's mind, is an idea and not a 
 fact) to the social. Public law is constitutional. It is 
 the law of nations, and is cosmopolitan. The State 
 arises from contract; but its content is not capricious, 
 because, in the State, man has true liberty, equality, and 
 independence. The State has no other mission than to 
 look to the coexistence of the liberty of individuals. 
 Thus it follows that the Kantian State, whatever be 
 its law or policy, must, since it is based on reason, de- 
 velop from a system of natural law. The State, like an 
 individual, necessarily must advance from the natural 
 to the social.
 
 50 INTRODUCTORY SURVEY 
 
 IX 
 
 GENOVESI, FICHTE, SPEDALIERI, AND 
 ROMAGNOSI 
 
 After Vico came GENOVESI, not a follower of Wolff 
 and Locke, though an admirer of the latter (and likened 
 by him to a tall and noble but sterile cypress). He is 
 eclectic, in fact, though showing but little scepticism. 
 His teaching of eclectic freedom in philosophy emanci- 
 pates it from slavery to the masters, both in Italy and 
 elsewhere; for we must not forget that the principles 
 of the Neapolitan philosopher were applauded and re- 
 ceived in Germany. In ethics, Genovesi follows Locke 
 closely. Man, according to the author of the "Diceo- 
 sina," tends towards happiness, which is obtained by the 
 harmony between individual cupidity and social rights. 
 The law that effects this harmony is moral law. It is 
 one, certain, unchangeable, and obligatory, enforcing 
 the observation of rights, and their reestablishment 
 if violated. A right is an essential property given to 
 rational beings and guaranteed by the universal law. 
 It is a means to happiness. There is an equality in respect 
 to inherent rights an inequality in the different 
 orders and species of things. Every right, acquired by 
 means of an activity, is reduced to individual control 
 which has its origin in a need. There is a right to occu- 
 pancy, if work is done on the thing occupied. Whoever 
 violates a right deprives someone of his property. The 
 true natural state is not that of Vico and La Metric but 
 the patriarchal. Social coexistence, the effect of the 
 existence of man, is the basis of sovereignty, which pre- 
 supposes express tacit consent. The laws should be en- 
 acted by a body of learned men. The mixed form of the 
 Spartan and English Constitutions is a divine inven-
 
 GENOVESI 51 
 
 tion. The State has the right of eminent ownership; 
 the duty or right of education, and the temporal rights 
 of the Church are really prerogatives of the State. 
 Law demands full respect of neutrality, of allegiance, 
 and of embassies, and is opposed to conquests made 
 under the pretext of civilizing the conquered people. 
 
 Genovesi is a follower of Locke's utilitarian doctrines. 
 He believes that the end of man is happiness, and there- 
 fore the motives of action can only be the desire of reward 
 and the fear of punishment. The author of the "Diceo- 
 sina" considers rights as property; but he does not show 
 to what extent rights can be alienated. He does not be- 
 lieve in a state of nature, and yet he speaks of certain 
 rights ceded to the State for common security. He de- 
 velops an antagonism between natural and civil law, 
 such as had not been asserted since Vice's time. His 
 works contain disquisitions on punishment; on sover- 
 eignty as the effect of social coexistence; on certain 
 of the statutes; on the regulation of private gentlemen 
 or the middle class (called by him "pagliettismo"); on the 
 body of learned law-givers; on the necessity of making 
 ownership free, easy of transfer, individual, divisible, 
 and accessible to all; and on the unity and sovereignty 
 of the State. His views on the necessity of altering the 
 rules of property can be found in the "Lezioni di Com- 
 mercio," which outlined, even before Adam Smith's 
 work, the science of the wealth of nations and of popu- 
 lation a science taught for the first time by Genovesi in 
 the chair endowed by Intieri in Naples. He did not 
 treat his subject, however, from the point of view of 
 labor; this was first considered by Smith, who agrees 
 with Genovesi that wealth comes from work as mani- 
 fested in the arts, crafts, and trades. The idea of unity 
 lies in sovereignty of the State, which, he says, in 
 Naples expressed a new triumph of the laity through the
 
 52 INTRODUCTORY SURVEY 
 
 efforts of a priest. Genovesi himself combatted as a phil- 
 osopher the doctrines of Argento, Riccardi, Capasso, and 
 Giannone, all of whom, controlled by civil history 
 and canonical influences, believed in the claims of 
 papal Rome. 
 
 After Kant came FICHTE. In his system, the original 
 synthetic unity of intuition and category, of sense and 
 mind, becomes auto-consciousness; is self-producing; 
 and, as such, develops in thesis, antithesis, and synthesis. 
 For Fichte, knowledge means that the subject, or the ego, 
 is also in itself the non-ego or the object. In other words 
 knowledge demands that the object, the non-ego, should 
 have the same ideal form as the ego ; whence the principle 
 of the ego as ego and non-ego. But the ego of Fichte 
 does not act as a real ego; neither does the non-ego act 
 as nature; it is the form and non-reality of knowledge, 
 and therefore is not truly absolute. From this, come the 
 Fichtian subjectivism and relativism, shown both in his 
 ethics and his natural law. In fact, moral action, 
 which, according to Kant, presupposes conformity 
 to necessary and universal law, is derived by Fichte 
 from the action of the ego through conviction, and reaches 
 fulfillment in enthusiasm or reciprocal excitation. Fichte 
 does not tell what this conviction consists of, or rather 
 he does not indicate its content, thus become a condition 
 of morality. For Kant, juristic freedom is from its crea- 
 tion limited by universal freedom ; for Fichte, it originates 
 from the individual and real existence of the ego; is 
 based on the right of a rational being to act as the sole 
 cause in the sensible world; and is of itself unlimited, 
 like the coercive faculties which inhere in it. But since 
 one ego must admit another ego's existence, it must, 
 by that admission, attribute to the other an unlimited 
 power like its own. Thus the powers of both mutually 
 lessen and limit one another. At this point, freedom is
 
 FICHTE, SPEDALIERI 53 
 
 transformed into license, or into a power deprived of any 
 law. Fichte perfects (with Rousseau) a system of natural 
 law, paying no attention to those germs of speculative 
 juristic philosophy left by Kant, who saw the great 
 difference between license and freedom, and tried to 
 realize the latter, while maintaining equality and indepen- 
 dence within the State. 
 
 Fichte cannot deduce a permissive law from the abso- 
 lute moral law of universal jurisdiction. In a rational be- 
 ing, there is love of duty for duty's sake (a tendency, 
 absolute and obligatory) and love of one's self and of 
 one's fellows (a power, and not of the same character, 
 because it can be reduced to unlimited freedom, which 
 excludes every law). The attainment of freedom de- 
 pends on freedom itself, and therefore the law and the 
 State are secondary. The State can be destroyed and 
 remade at will. But in a second phase of his specula- 
 tion he modifies his first doctrine, because he leaves sub- 
 jective idealism and takes up the theory of the absolute 
 ego, and consequently corrects his early legal notions. 
 
 SPEDALIERI, like Genovesi, starts out with the tendency 
 of man to happiness, to which rights and obligations are 
 medial. For him, natural law is a power conforming to 
 reason arising not from the act of man, like positive 
 law, but from the essential qualities of man's nature. 
 The principles of natural law are necessary and immu- 
 table truths; not so those of positive law. The natural 
 rights, which belong to man, as man, look to his preser- 
 vation, self -protection, and property; and there is a 
 right to be free to act in pursuit of these three rights, 
 as well as a free right to thought, to self-defense, and 
 the aid of one's fellow-beings (an imperfect right in all 
 cases, except of absolute necessity) . As soon as the mind, 
 says Spedalieri, sees that such a thing should be done 
 in such a way, man enters into a true obligation, into
 
 54 INTRODUCTORY SURVEY 
 
 a necessity conforming to reason, although he con- 
 tracts with no one. 
 
 The kinds of obligations are as numerous as the kinds of 
 rights. The notions of good and evil, of the just and the 
 unjust, contained in natural law, do not come from human 
 invention or the free will of God, but are the sequence of 
 things, expressing necessary eternal truths that God 
 cannot fail to approve. It is evident that Spedalieri, 
 with these three concepts of law, obligation, and natural 
 law, with the entirely rationalistic system which he em- 
 phasizes in his first book, goes back to the great principle 
 of the modern philosophy of law that is, to reason 
 as the source of the Ethos, to the reason that is the very 
 system of the universe, and therefore to an objective will 
 and not a capricious and subjective one (like that on 
 which the whole system of natural law, so called, which 
 had its last expression in Fichte, was founded). 
 
 We can observe the same thing, when Spedalieri goes 
 on to contrast the state of nature with civil society, 
 and to conjecture about the origin of the latter. At 
 once, certain advantages and disadvantages are seen, 
 common to both states, derived from the nature of man 
 and its necessary effects. Thus, for example, in the 
 state of nature, since man tends towards happiness and 
 is gifted with powers capable of various development, 
 there should be (as in civil society) an equality of rights 
 and natural obligations, and an inequality in the material 
 of these rights. Looking more closely, it is seen that 
 man is infinitely better in civil society than he would be 
 in the state of nature, at least so far as physical conditions 
 are concerned. Lastly, in regard to the spirit, the advan- 
 tage is wholly on the side of civil society. If it, the state 
 of nature, therefore, could exist (concludes Spedalieri), 
 it would be infinitely worse than the present social 
 conditions. But it is more than likely that this state
 
 SPEDALIERI 55 
 
 never existed, because men in it, being savages, would 
 have been able only with the greatest difficulty to form 
 a conception of a system of society in order to realize it ; 
 unless we suppose that God himself, by a single act of 
 omnipotence, created everything mankind, civil so- 
 ciety, language, and abstract ideas (at least those ideas 
 most necessary to physical existence and moral conduct). 
 Now there can be no doubt that these reasonings of the 
 Sicilian philosopher destroy, on the one hand, one of 
 the bases of the system of natural law, that is, the hypo- 
 thesis of a state of nature ; and on the other, show that the 
 inherent rights (thought to belong to a state of nature) 
 exist only in a state of society, for the part cannot exist 
 without the whole or the person without the ethical 
 organism. 
 
 And yet Spedalieri cannot rise entirely superior to the 
 influence of the principles of his time. After raising the 
 idea of an objective nature to the plane of ethico- 
 juristic criticism, and denying the state of nature, he 
 still maintains that contract is the base or intrinsic 
 rationale of civil society. In the first place, he says, 
 we must distinguish the actual from the ideal. It is 
 one thing to search out what has happened in fact, 
 and another to discover what should be done by right; 
 and it can be shown, as an historical truth, that man 
 can be born or remain outside of society, and at the same 
 time that an implied contract is the basis of rights 
 in civil society. In whatever state man is found (pro- 
 viding that it is one in which he can exist) he must 
 be there by his own will and consent, otherwise there 
 would be violence done to his imperishable right of free- 
 dom. But here Spedalieri's earlier principle, that of the 
 necessary and eternal sequence of things, which God 
 cannot fail to desire, is ignored, and an empty subjec- 
 tive principle of consent is substituted a principle
 
 56 INTRODUCTORY SURVEY 
 
 not important in the various situations of life, and not 
 all-controlling; for the subjective will should conform to 
 the substantial and objective will, which is the norm 
 and order of things. 
 
 ROMAGNOSI, as a philosopher, is not one who merely 
 reproduces the thought of Locke, Condillac, and Bonnet. 
 He is a close follower of the doctrine of Campanella, 
 who considered the cognition of external things, called 
 by him "addita," as founded entirely on the certainty of 
 "abdita" cognition that is, on the consciousness of 
 being, power, will, and knowledge. It is evident that 
 the conception of an original "abdita" knowledge, or 
 primitive spontaneity of mind, is directly opposed to the 
 system of the modern sensualists, who affirm that ideas 
 come from without and that the spirit attains knowl- 
 edge of external objects before it attains knowledge of 
 itself. But according to Romagnosi, the perceptions 
 are not copies of external originals, but are derived from 
 the indeterminate energy of the ego or its unity, as shown 
 by the consciousness of the functions of knowledge, 
 will, and purpose, variously affected by the influences 
 of external stimuli ; and they should be regarded as signs 
 to which existing things and methods correspond. The 
 mind (says Romagnosi) knows with truth and acts 
 with effect. He distinguishes the ages of mental develop- 
 ment into epochs of personified, imitative, and philo- 
 sophical doctrines (the last, in which true cognition of 
 things is deduced from their assignable cause, was begun 
 by the work of Galileo). Opposing the fanatic realists, 
 he concedes there has been great abuse of this truth by 
 gratuitous abstractions and speculations sanctioned 
 by the Church; but insists that we should not fall into 
 the other extreme; there is a middle course between 
 Scylla and Charybdis ; here Romagnosi makes good use 
 of Bacon's maxim.
 
 ROMAGNOSI 57 
 
 As to morals, law, and politics, Romagnosi distin- 
 guishes five schools the mythical, transcendental, theo- 
 logical, fictional, and philosophical. He criticizes the first 
 for basing law on an hypothesis of savage solitude ; the 
 second, for not giving equity a controlling interest; 
 the third, for putting the divine will in place of the 
 human; the fourth, for creating fictitious men and 
 qualities. The fifth, he bases on indubitable fact, 
 undeniable laws, and distinct norms. It assumes 
 the natural tendencies of man as fundamental, and 
 tempers legal acts with a necessary equity. Social 
 power should be considered as the resultant effect of 
 this intermingling; and from it canons and laws should 
 be deduced, with due regard to the action of time and 
 chance (which Romagnosi respects), keeping in view 
 the perfecting of civilization, and regarding it as an art; 
 whence the concept of the arbitrary transmission of the 
 fact of civilization. This philosophical school is not 
 really Baconian (because it makes facts, not dogmas, 
 the basis of the moral and political sciences), nor is it 
 Benthamic. Bentham, says the Italian, is the most 
 famous among those modern philosophers who preach 
 the atheism of law and morals ; they do not distinguish 
 between the regularly and irregularly useful; they pre- 
 sent ethical notions without their fundamental causes; 
 they hold both natural law and that of the nations 
 to be fictitious, but only because they cannot rise to the 
 conception of a useful existent before positive law 
 that is, to Vico's principle of the equitable good. 
 
 Natural law, he maintains, is a science. It is the system- 
 atic cognition of the rules governing human acts, de- 
 duced from the real and necessary natural relations, 
 in order to obtain the good and avoid the evil. It lies 
 in the pursuit, by means of society, of the best preser- 
 vation of man, accompanied by the quickest and fullest
 
 58 INTRODUCTORY SURVEY 
 
 means for the perfection of the ego. This definition does 
 not take account of the difference between morals and 
 law, though human acts can be either entirely ethical or en- 
 tirely juridical. It reproduces the idea of law according to 
 Clarke and Montesquieu ; it is in accord with the positive 
 direction of Romagnosi's philosophy, who always seeks 
 the idea in the act. It presents the conception of nature 
 as a spontaneous and necessary sequence of events 
 as an order of reason, as a moral necessity, not coercive. 
 It unites the utilitarian formula of happiness with that 
 of the equitable good of Vico. If natural law, writes 
 Romagnosi, is to attain to the Viconian doctrine of the 
 true and certain, it must be one of necessary and im- 
 mutable reason, and of mutable position when there are 
 changes of nature or chance. And from this point 
 of view it is as extended, pliant, and multiform as circum- 
 stances demand whence the socialization of necessary 
 law and the conception of an economic law. Herein 
 is seen a sanction of the liberal theories of Adam Smith, 
 and of the maxim of Genovesi that he who governs too 
 much governs badly. 
 
 The ruling maxims of practical jurisprudence, as 
 developed by Romagnosi, can be reduced to four. 
 First, there is the formula of the equality of exchange- 
 able utilities (except of the inviolable exercise of common 
 liberty), to which the laws of contract and quasi-con- 
 tract (including trusts and the rules of intestacy) 
 are referable. Second, there is the idea of a legislative 
 survey comprehending the complicated relations of 
 social circumstances and of their control. Great re- 
 liance should be placed on statistics, which Romag- 
 nosi (here opposed to Say) thinks should aid 
 a politically strong State, with active control over all 
 objects within its sphere. Third, comes the concept 
 of the connection between law and economics, where
 
 ROMAGNOSI 59 
 
 social justice makes common cause with truth and com- 
 mon utility, and is limited by the social power. Lastly, 
 comes the idea of comparative legislation, which leads 
 our author to say that there is no nation more advanced 
 than the Roman in the art of comparing utilities an 
 art that is found to-day, he says, in the existing civil 
 code of the Kingdom of Italy.
 
 60 INTRODUCTORY SURVEY 
 
 X 
 
 THE WRITERS OF THE REACTIONARY PERIOD 
 
 THE HISTORICAL AND PHILOSOPHICAL 
 
 SCHOOLS SCHELLING AND 
 
 SCHLEIERMACHER 
 
 The powerful and extensive movement, begun in 
 the name of the rights of the individual, resulted (as 
 we have already said) in the theoretical and practical 
 glorification of license. This can be seen in the systems of 
 Rousseau and Fichte, and the immense revolutionary 
 current of the past century. The individual, aiming to re- 
 affirm his personality, produced an empty ego and then 
 tried to reconstruct the human world by will alone, 
 without giving it an ethical content. But this effort 
 (because contrary to nature) was not crowned with suc- 
 cess; and soon there was a reaction in the form of a new 
 movement, based on the principle of an objective will. 
 This principle was destined to lend substance to the 
 empty, rational, and universal forms of Kant, reestablish- 
 ing the idea of a higher ideal necessity, and emphasizing 
 the part of man that is more intimately related to the 
 community. At this stage of events, the ancient State 
 was an object of admiration. Yet we must note that 
 the idea of the community never regained its former value 
 in its redevelopment in history after the period of in- 
 dividualism. For, since the age of individualism, the 
 need of a harmonic agreement between the two elements 
 was clear a harmony which the concept of an ethical 
 organism alone is capable of producing. 
 
 In Italy, the principle of an objective will was not 
 entirely lost sight of by the writers of the past century 
 or their followers of to-day. In fact, Genovesi was 
 moved to pity by their exaggerated doctrines. He held
 
 HISTORICAL SCHOOL, ETC. 61 
 
 that we must preserve our rights, and must reestablish 
 them if violated. Lampredi looked upon a right as a fac- 
 ulty of doing what is necessary towards the fulfilment of 
 an obligation ; it was derived (in his mind) from the dic- 
 tates of reason and a sensible impulse towards happiness. 
 He believed that obligation is based on the nature 
 of things itself and therefore on the will of God, the 
 supreme creator and preserver of the laws of the world. 
 Spedalieri did not believe in the state of nature, and 
 advanced a belief in a general objective scheme. Romag- 
 nosi based his system on the necessity of nature, and 
 freely criticized Rousseau. 
 
 The Italian authorities who inclined towards the max- 
 ims of the Encyclopedists (by whom they were extrav- 
 agantly praised) are GALIANA, BECCARIA, and FILAN- 
 GIERI. Galiana, economist, publicist, and writer, is not 
 occupied with the search for the real principles of law. 
 Beccaria (to whom Europe owes the reformation of 
 a barbarous system of penal law, inherited from the 
 Roman Empire, illustrated in Carpzovius, Clarus, and 
 Farinacius) departs from the hypothesis of the social 
 contract in order to establish a right of punishment. 
 He denies the legality of capital punishment. Here he 
 differed from Rousseau, who taking the same point of de- 
 parture concludes in favor of it ; for (says the latter) such 
 a right is given to society by the individual, who risks 
 his life in order to save it. The great reformer's princi- 
 ples of penal law and the laws of the division of labor 
 are methodically set forth by RENAZZI, who borrows 
 his practical criterion, his equity and his criticisms 
 from the Roman jurisconsults and Malthus. Renazzi 
 believes in the state of nature and in the social contract ; 
 but he does not decide the question of capital punish- 
 ment, being content to combat barbarous punishments. 
 Filangieri is a close follower of the abstract French
 
 62 INTRODUCTORY SURVEY 
 
 philosophy, believing in the omnipotence of legislative 
 license, which ought to abolish immediately the laws 
 handed down from the brigands of the Middle Ages, 
 and to create wise men and philosophers by the touch 
 of the wand of honor. Always guided by abstract 
 ideas, he recognized the possibility of laws which would 
 be good for all times and places thus departing 
 from Montesquieu, who thought that law should answer 
 the needs of each country and age. We might say that 
 Filangieri shows what should be done and Montesquieu 
 what has been done. But the connection between the 
 science of legislation and the French theories is pecu- 
 liarly manifest, when Filangieri accepts the distinction 
 between the state of nature and society, and discourses 
 upon the surrender of individual rights to society; 
 among these he includes the right of killing an assailant, 
 the foundation of the legality of capital punishment. 
 
 Outside of Italy, the new movement is represented by 
 three groups the so-called writers of the REACTION- 
 ARY PERIOD; the followers of the HISTORICAL SCHOOL; 
 and SCHELLING and SCHLEIERMACHER. 
 
 The REACTIONARIES hope for the return of that ethical 
 objectivity, existing prior to the great revolutionary 
 movement, and conceive of a restoration of affairs, ac- 
 cording to various national traditions. So DE MAISTRE, 
 who extended theocracy to princes and nobles, and 
 founded the theory of the papal system, reproduces 
 the conception of the old French monarchy. BURKE, 
 an admirer of the cavaliers, of the sentiments of honor 
 and religion, but without any theocratic notions, combats 
 the Revolution, with the aid of English civilization and 
 conservative ideas. And HALLER, who attributes a 
 character of private right to royal power, draws his 
 inspiration from the principles of the ancient German 
 territorial constitutions.
 
 HISTORICAL SCHOOL, ETC. 63 
 
 The partisans of the HISTORICAL SCHOOL (who want it 
 regarded as a positive and not a philosophical school 
 of jurisprudence) start out, as STAHL says, with the 
 connection between law and the national conscience. 
 Considering law as independent of individual will, 
 they distinguish it from the statutes, and look on it as 
 a varying, progressive, slow, and lengthy formation by 
 society thus making the State not a mechanism but 
 an organism. They distrust abstract metaphysics, 
 and recognize in the State the continual succession of 
 a change of forms, in which the highest intellectual 
 unity of a people is shown. They manifest the greatest 
 respect for what exists, and great aversion to sudden in- 
 novations and destructions. SAVIGNY, the head of this 
 school, believes in the old law, and is inclined by birth 
 and disposition to conservative ideas. THIBAUT, the 
 head of the philosophical school, attacks the old law, 
 preferring the rational element, and is urged by his con- 
 victions to enter the field in support of progress. We must 
 remember, nevertheless, that Savigny did not deny him- 
 self the aid of philosophy, nor deny progress. He recog- 
 nized the principle of the continuity of the development 
 of legal forms in connection with all other social facts; 
 although he defended tradition, it was in a liberal spirit. 
 On the other hand, Thibaut declared that he did not 
 know .a single jurisconsult who in the hope of a better 
 future did not despise the past and the present. He was 
 a great admirer of NIEBURH and proclaimed with ardor 
 the necessity of reforms not opposed to historical con- 
 ditions. The historical theory, like a philosophical 
 principle, has its unity in Vice's immortal doctrine of 
 the true and the certain, where they are joined and 
 produce a harmony. 
 
 ScHELLiNG 1 posits the speculative principle of reason, 
 
 i See infra, p. 79.
 
 64 INTRODUCTORY SURVEY 
 
 as the identity of nature and spirit; and explains the 
 reality of knowledge left unexplained by Fichte. 
 He attains such identity through intellectual intuitive- 
 ness. Conforming to the fundamental doctrine of his 
 philosophy, Schelling bases Ethics on an absolute 
 will, superior to the particular wills that develop in the 
 various moral organisms. The State (in his mind) 
 is the harmony of necessity and freedom in the realm 
 of reality; while the Church is the expression of the same 
 harmony in the spiritual realm of faith. The State is 
 the resultant of the one and the many; and upon the 
 various methods of equilibrium depends the history of 
 nations. In antiquity, the one prevailed; in modern 
 times the one, as a monarch, is placed over against 
 the many, represented by the people, conscious of their 
 power. The one, in the actual State, is abstract, not true 
 and concrete, whence arises the need of the union 
 of the State and Church, which expresses the unit 
 in the ideal. 
 
 The starting point of SCHLEIERMACHER is analogous 
 to that of Schelling. It is reason, the universal objective 
 power, which in its development forms nature and the 
 moral world. The moral world (according to Schleier- 
 macher) is explained through Ethics, which include the 
 rational laws of custom, right, the State and Church, 
 as well as the history or realization of such laws. The 
 essence of Ethics is derived from the interpenetration of 
 reason and nature an interpenetration that is never 
 complete. The organic functions, by which reason 
 subjects nature and makes it its symbol, constitute the 
 methods of interpenetration. Law is based on Ethics, 
 and consists in the moral coexistence of individuals, 
 connected in their various relations, which constitute 
 a necessary ethical process, because reason demands the 
 moral communion of men. This is realized in the State
 
 HISTORICAL SCHOOL, ETC. 65 
 
 by the submission of nature to the control of a national 
 group of individuals. If we once admit this definition of 
 the State, it is clear that speculative thought or scientific 
 communion, the free social idea, and religious sentiment, 
 (although in the form a communion) , should not be placed 
 under the control of the State. If the constitution of the 
 State depends on various national elements, it follows 
 that no political Metaphysics, but only a simple Physi- 
 ology, will be possible.
 
 66 INTRODUCTORY SURVEY 
 
 XI 
 HEGEL 
 
 Schelling started out at once with the highest prin- 
 ciple, with an intuition (like a cannon ball, as 
 Hegel says). HEGEL does not believe in the presup- 
 position of an intuition. He reaches absolute knowledge 
 by a series of acts so connected that one follows from 
 another. He develops his theory from the most ele- 
 mentary knowledge, or sensible consciousness (in which 
 the object, seen confusedly, is hardly distinguished from 
 the subject), to representation (which considers the ob- 
 ject as something with determinate properties). From 
 this form of knowledge he comes to reason, which under- 
 stands things as forces or causes, or individual objects; 
 from reason he goes on to auto-consciousness, in which 
 one ego considers its relation to another; and from 
 auto-consciousness he is led to the sphere where the spirit 
 is identity, always, however, distinct in itself from object 
 or subject. The determinations of this identity are, there- 
 fore, objective and subjective; such determinations are 
 the categories (the material of logic, a science of primal 
 reality or metaphysics). Logic is divided into Being 
 which develops in the categories of quality, quantity, 
 and measure ; Essence, which includes all the categories 
 of relation; and Notion, which has its movements in im- 
 mediate perception, its division in judgment, and its rein- 
 tegration in syllogism. Being is the thesis, Essence the 
 antithesis, and Notion is the unity of Being and Essence. 
 The entire process of the categories depends on the "idea." 
 "Idea," complete in itself, when fully understood, is sen- 
 sible reason ; nature is derived from the spirit, the immedi- 
 ateness of the idea; whence it appears always as posited,
 
 HEGEL 67 
 
 created , and has a rationale of means in regard to it. The 
 primitive categories of nature are space and time, indica- 
 tive of pure exteriority. Matter is concrete space. It 
 was first inorganic and then assumed organic and 
 living form. Life has its degrees; vegetable life assimi- 
 lates and exhales matter; in animal life there are also 
 assimilations and exhalations, but the animal assimilates 
 through the senses and exhales through the appetites. 
 The spirit, first as an indeterminate sense of self, and 
 then as a concrete or individual sense, is mind made one 
 with body. It participates in the life of nature, from which 
 it receives various influences; hence differences of 
 race, temperament, and the peculiarities of waking and 
 sleeping, and of sex. When the mind becomes a con- 
 crete sense of self, interpenetrated with self, it is the 
 ideal identity, knowledge, consciousness, the distinction 
 of the ego from the non-ego. Consciousness, through its 
 diverse forms, as we have said before, develops into mind 
 and attains objectivity and certainty. Mind, this iden- 
 tity of the object and subject in subjective form, is theo- 
 retical. The theoretical mind begins by being an intui- 
 tion, and becomes representation and reason. Since 
 the mind produces the subject, the universal, or the 
 concept, from theoretical, it becomes practical, that is, 
 identity of object and subject in objective form. The 
 practical mind is at first practical sentiment or unstable 
 appetite, then inclination, desire, passion, and license, 
 and finally reasonable or moral freedom, realized in 
 custom. With the attainment of rational freedom, prac- 
 tical mind becomes ethical spirit, the unity of the theoret- 
 ical mind. Such spirit is the activity which produces, not 
 objects of sense, representation, and reason, but those that 
 are ethical or juridical. Soul, consciousness, and mind 
 are found in every individual. They do not constitute 
 worlds; the spirit, as Ethos, is a community of subjects
 
 68 INTRODUCTORY SURVEY 
 
 and therefore a world. But, in fact, the struggle of 
 the passions does not disappear, whence the necessity of 
 a higher sphere where the spirit can be all-important 
 and can attain the Absolute through art, religion, and 
 philosophy. The Absolute in art lies in sensible intui- 
 tions, in religion, in sentiment, and faith; and in philos- 
 ophy it is shown by the evidence of reason. It is in 
 philosophy that the spirit acquires full and complete 
 auto-consciousness and development through the mind. 
 
 The philosophy of law, according to Hegel, has for 
 its object the idea of the law and its realization. Law 
 is external freedom. It is the existence of freedom, which 
 is first determined in particular objects by ownership, 
 and then in agreement over one object by contract. In 
 ownership, there is the will that realizes itself in the things 
 possessed. As these are, by their nature, accidental, it, 
 too, is accidental. The accidental will or caprice denotes 
 a possibility of the alienation and also of the violation 
 of rights, though the latter entails a punishment. Punish- 
 ment is the vindication of a violated right, by which 
 true and good reason is substituted for false and de- 
 praved reason. Thus freedom advances from the state 
 of external to one of internal existence. Internal freedom 
 is morality, which lies in the practical virtue of the 
 spirit to direct the sensible desires according to reason. 
 
 The spirit, after being shown in act as juristical objec- 
 tivity and moral subjectivity, makes for the unity of 
 law and morals, of external and internal freedom. The 
 simple observation of the law has no virtue in it, nor 
 an abstract belief in the good per se, the law can be 
 obeyed without a belief in the good, and a belief 
 in the good is not a sure sign of respect for the law. 
 The belief should be shown in a manner not entirely 
 subjective, accidental, and temporary, but stably and 
 substantially that is, in ethical habit, ordinary ac-
 
 HEGEL 69 
 
 tion, and custom. Custom presupposes the community 
 of subjects or minds. This community is, first the family, 
 then civil society, and lastly the State. The family is a 
 community existing in sentiment and love. This unity 
 has a tendency to become more rational in form, the 
 family developing, when the children acquire full con- 
 sciousness of their being and assert themselves with 
 their individual interests. The systemization of these 
 particular interests is civil society. 
 
 Sentiment and interest cannot exhaust the concept of 
 man, therefore a new form of community is created, 
 in which the spirit can develop as reason or universal will. 
 The new form is the State, an ethical organism, con- 
 taining universality in its legislative power, particu- 
 larity in its governing power, and individuality in the 
 power of the king. The predominance of one of these 
 factors over the others generates the various political 
 types, for democracy corresponds to universality, 
 aristocracy to particularity, and monarchy to individual- 
 ity. In representative monarchies, all the factors in the 
 concept of the State are fully realized. 
 
 International public law is a derivative of the rela- 
 tions between States, based on the common nature and 
 autonomy of nations. War, a relationship between States, 
 is the only means for the settlement of their disputes; 
 it is like the salutary movement of the air. Constant 
 peace presupposes an agreement, which, based on relative 
 motives, can only be accidental. National existence 
 lies entirely in the power of the absolute spirit, which 
 exercises full jurisdiction, putting out of existence the 
 nations that have fulfilled their mission, and creating 
 others to express new concepts. Whence it is that the 
 history of the world is the manifestation of universal 
 justice. Absolutely spiritual are the beginning and end 
 of nations, which represent the grades of their develop-
 
 70 INTRODUCTORY SURVEY 
 
 ment. The historical entity of nations, their special 
 mission in the world, are derived from the absolute 
 spirit, which Hegel made all-important, believing in the 
 ethical and mundane spirit as a complexity of law, 
 morals, and politics.
 
 ROSMINI, KRAUSE, SCHELLING, ETC. 71 
 
 XII 
 
 ROSMINI, HERBART, TRENDELENBURG, AND 
 
 KRAUSE THE VARIOUS PHASES OF 
 
 SCHELLING'S PHILOSOPHY STAHL 
 
 AND SCHOPENHAUER 
 
 Italian philosophy did not remain uninfluenced by 
 the movement of German thought, and especially by the 
 Kantian movement. SPAVENTA showed the influence 
 of the former with great acumen, in his examination of 
 the doctrines of GALLUPI, ROSMINI, and GIOBERTI. Gallupi 
 follows experience, which for him is the elaboration of the 
 data of the senses in the relations dependent upon 
 the synthetic activity of the spirit, such as identity and 
 difference. He starts out with the Kantian form of 
 knowledge, that is, distinction, as the base of empirical 
 knowledge, teaching that perception outside of myself 
 is inseparable from consciousness of myself. And he 
 follows Kant in his recognition of synthetic judg- 
 ments a priori practical, and of ideas born of the spirit 
 synthetically an unit. Rosmini bases knowledge on the 
 transcendental idea of entity. Like Kant, he sees in 
 the fact of knowledge, intuition or sensible data, and the 
 category or innate idea of the entity; and in intellectual 
 perception, the reduction of the latter to the former. But 
 the idea of the entity through its very indefiniteness can- 
 not lend itself to the connection of the pure concepts, 
 of the categories ; neither can the latter come from the 
 senses, and therefore (thinks Gioberti) Rosminian 
 transcendentalism results in nullism ; and we are in need 
 of a concrete principle of knowledge, suitable to the crea- 
 tion of the categories. Such a principle is the ideal formula 
 of Gioberti; being creates the existent. To explain 
 knowledge, Gioberti does not have recourse to an empty
 
 72 INTRODUCTORY SURVEY 
 
 and inert idea, like that of a possible entity, but to an 
 idea which comprehends and originates everything, to 
 the creatjve idea, a new form of the original synthetic 
 activity of sense and intellect, of the ideal and the real, 
 of nature and spirit. 
 
 Of the three Italian philosophers, Rosmini alone has 
 a complete and fully developed philosophy. He starts 
 out with the ethical principle, recognizes being in its 
 place and respects it for what it is worth. From the 
 practical recognition of being is derived happiness, 
 consisting in the satisfaction of our capacities, 
 by their attainment of their proper ends. Moral law 
 prescribes the practical recognition of being, in its 
 sphere or as it is; which means that in an intelligent 
 being, all the activities proper to it should be recognized 
 and respected. Respecting all the activities of an entity 
 implies the duty of not hindering it in the exercise of its 
 rights. The activities of a being, considered in relation 
 to the law, whose respect they command, become as 
 numerous as the rights to which they belong. And 
 since the activity of a being is connected with its well- 
 being, so right, subjectively considered, is the faculty of 
 doing what one pleases, protected by the moral law which 
 enjoins its respect. The science of law is connected 
 with eudemonology, which shows the material or good 
 of enjoyment, and with ethics, which show the form, 
 that is, the nobility ; they guarantee the well-being of man. 
 Ethics are concerned with duties; the law's object is the 
 power of action. The former are of an essentially moral, 
 and the latter of an eudemonic nature but influenced by 
 its relation with moral law, in which law is subordinate to 
 ethics. From the definition of law, it can be easily seen, 
 as morals must end in an intelligent principle, that 
 there cannot be any rights except in intelligent beings, 
 whose activities moral law protects. Moral law, too,
 
 ROSMINI, KRAUSE, SCHELLING, ETC. 73 
 
 prescribes absolute respect of personality, which alone 
 is ultimate, and prescribes through it the respect due to 
 all the immediate or mediate activities that are man's. 
 The general characteristic, which marks activity as the 
 subject of a right, not only in relation to the inherent 
 rights but also in relation to rights in general, is property. 
 Property, in its broadest signification, means the con- 
 junction of one individual thing to another, a stable and 
 complete conjunction, so exclusive, in fact, that one 
 object is called the other's, and can be bound in the same 
 degree to nothing else. Rights are innate and acquired. 
 The second presupposes the first, as the act requires 
 its potentiality. Only those rights are alienable which 
 are not essentially bound to the person. Rights are 
 maintained by legal or by personal force. 
 
 The ideal being and the first law (says Rosmini) are iden- 
 tical for all men and intelligences. All the intellectual 
 activities, therefore, and all the purely personal rights 
 of the beings, which form the human race, are joined, 
 thus binding men together in a state of natural society. 
 The concept of a society is that of many persons, who 
 have united for a common purpose, or the good that they 
 hope to obtain together, using to win and obtain it the 
 activities that each has a right to assign. All men are 
 united in the ideal being; all men aspire to it, wish to pos- 
 sess and enjoy it. The tendencies to being and well- 
 being generally start from the personal activities, 
 which cause the being in the first instance, and form 
 the nature of man. If men propose for themselves other 
 more particular advantages, concepts of other societies 
 will arise w r ithin the first. From the purely personal 
 rights comes the society of mankind; from individual 
 acquired rights spring the roots of all the other particu- 
 lar associations, with their determinate ends. In such a 
 way, individual rights generate social rights. But being is
 
 74 INTRODUCTORY SURVEY 
 
 ideal, real, and moral. And three kinds of advantages 
 (objects of the society of mankind) correspond to these 
 three of its forms. The tendency to happiness leads to 
 being as the real, the tendency to truth leads to being 
 as the ideal, the tendency to virtue and justice leads 
 to morality. As each form of being demands the other 
 two, so, in each of these tendencies, the other two are con- 
 tained. The initial society of mankind can, therefore, 
 give place to three diverse societies, domestic, civil, 
 and theocratic or divine. Domestic society places man in 
 relation to the reality of existence through sentiment and 
 procreation, and has the rationale of a principle. Civil 
 society (a discovery of the human intellect) is the safe- 
 guard and protection of the exercise of rights and has the 
 rationale of a means. Theocratic or religious society 
 consecrates rights by a new virtue, which bases all 
 entities and objects upon the principle from which they 
 spring, and it has the rationale of an end. 
 
 To the absolute idealism of Hegel is opposed in Ger- 
 many the metaphysical and individualistic realism of 
 HERBART, founded on the Kantian principle of things 
 in themselves. Kant began with the sensations ; Herbart 
 begins with the formal concepts of experience, containing 
 contradictions which must be eliminated by meta- 
 physics. We know the phenomena of an object as 
 it appears; the phenomenon is not explicable without 
 the being in which it appears; the being is not an ele- 
 ment of a concept, but is without it. It is absolute 
 position, and is, as such, single, indistinct, simple, irrela- 
 tive, and immutable. The contradictions, contained in 
 the concepts of things, properties, changes, and causes, 
 are derived from a presupposition of inherence (something 
 with diverse quality) and from the demand of change (a 
 partial alteration of the thing), while being is single, of 
 but one property, simple and not capable of change.
 
 ROSMINI, KRAUSE, SCHELLING, ETC. 75 
 
 Inherence and change are referable to phenomena, 
 not to being. Being consists in many "reals" or monads, 
 simple and immutable, existing in themselves and of 
 themselves. All these, united, give a result which each 
 alone cannot give. Phenomena arise from the relations 
 between the close, impenetrable monads, placed one 
 against the other. If a monad touches another, the 
 contact is always external, the disturbance extrinsic, 
 but the monad, that is touched, preserves its qualities, 
 and responds by an act of preservation, wherein lies the 
 effective appearance of things, in other words, repre- 
 sentation. The ego, as a principle of representations, 
 is single and many. It contains the contradictions 
 revealed in the conception of things and properties. 
 The contradictions end when the ego is regarded as a 
 point-movable, in which many series of representation 
 intersect. 
 
 Now it is manifest that this kind of realism cannot 
 overthrow idealism, because the "reals" are metaphysical 
 presuppositions, which express thought in its simplicity 
 and distinction. The difference (from this point of view) 
 between Herbart and Hegel is that Hegel considers 
 thought explained in his system of determinations as 
 the concrete connection and truth of experience, while 
 Herbart bases it on intuitive thought in its indistinction 
 or the true substance of the "reals." Herbartian realism, 
 in ethics, is mere formalism, because it is based upon 
 purely abstract conceptions of harmony and aesthetic ac- 
 cord. /Esthetics, differing from metaphysics, depart 
 from empirical data, and develop through a series of judg- 
 ments,, expressing contentment or displeasure. Ethics 
 are a part of aesthetics, whose judgment contains 
 approval or disapproval of actions, in comparison with 
 some model concepts, which give no positive commands. 
 If the action accords with such an original model, it is
 
 76 INTRODUCTORY SURVEY 
 
 worthy of approval ; if it does not, it is disapproved of. 
 Such concepts do not show what should be done; they 
 are not imperative; and ethics, therefore, are without 
 a content of action, and are essentially formal. There are 
 five model concepts, which deal with freedom, perfec- 
 tion, benevolence, law, and equity. Law is the harmony 
 of the majority of wills to avoid struggle. From these 
 five ethical concepts, not reducible to a single concept, 
 there arise five social concepts. The concept of ani- 
 mated society rose from the concept of freedom, the con- 
 cept of the system of education corresponds to that of 
 perfection; beneficence comes from benevolence; the 
 concept of the juristic society corresponds to law, 
 and a system of retribution presupposes equity. 
 
 TRENDELENBURG, who thinks that in the Hegelian 
 dialectics intuition is artfully hidden, and that, without 
 intuition, there is no real progress, exalts above all 
 the principle of simple original motion, common to thought 
 and being. He, however, is unwilling to admit that mo- 
 tion, thus conceived, in an idealistic system such as his, 
 must in its essence be the same . as Hegelian growth. 
 In Hegelianism, growth is derived from the nature of 
 thought itself, which is an action of union and distinction, 
 relation, motion. Motion, in which there is a commun- 
 ion of thought and of being, is not corporeal, according 
 to idealism; and can only be the result of thought. 
 For thought alone is capable of containing in itself being, 
 of going out from itself and returning to itself. Motion, 
 thus regarded, is reducible in the last analysis to the 
 original synthetic activity of Kant. Trendelenburg, 
 therefore, is not an effective opponent of Hegel but rather 
 of Herbart, the enemy of motion . He thinks that the con- 
 tradictions with which Herbart starts out are not true; 
 that if they were true, they could not be resolved; 
 and that even if they were resolved, the highest, that of
 
 ROSMINI, KRAUSE, SCHELLING, ETC. 77 
 
 the end, would not be explained. He denies the 
 atomic conception of the world and Spinoza's concep- 
 tion of indifference. He prefers the organic teleological 
 definition of Plato and Aristotle, and bases law on 
 ethics. 
 
 Natural law, like ethics, has its presupposition in 
 metaphysics, which give the organic conception of the 
 world, and in psychology, that shows the essence of man. 
 Metaphysics create the idea, the principle of organic 
 conception and of all necessity. Law, in that it rises to 
 the elevation of the idea, participates in the necessity 
 which is logical, physical, and ethical. The necessity in 
 law at first is ethical, because it contains a norm of 
 reason. Then it is physical or compulsory, because force 
 is a means for the realization of the norm among recal- 
 citrant wills; and finally it is logical, because law must 
 appeal to the intellect and has need of method in its for- 
 mation and application. Law, therefore, has three sides 
 ethical, physical, and logical. From the first point of view, 
 law, as ethics, should be founded on the essence of man 
 lying in the depth of his ideas, and on the fullness of his 
 historical development, because a single rational element 
 leads nowhere, and a single historical factor is useless. 
 The idea of man is the idea of a community: "unus 
 homo, nullus homo." The human community is essen- 
 tially a whole, an ethical organism, in which control and 
 organization are shown. The control affects the in- 
 dividuals, who aid one another to obtain their particular 
 ends. The organization concerns the ends of the commun- 
 ity, effectuated by man in general. The control and or- 
 ganization should harmonize; neither should prevail 
 at the cost of the other. If the first is absolute, it results 
 in atomism and anarchy. If the second has exclusive 
 control, individual personality is denied. Now law, 
 the norm of control and organization, is the complexity
 
 78 INTRODUCTORY SURVEY 
 
 of those universal determinations of action, which 
 render the preservation of the ethical whole and its parts 
 possible. It works for the realization by force of the 
 ethical whole. Ethics are the objective realization 
 of the human essence; morals and law represent 
 more the subjective realization, one considering the in- 
 tention and the conscience, the other considering 
 action, external relations, and coexistence. 
 
 The philosophy of KRAUSE shows an attempt to unite 
 the subjectiveness of Fichte and the objective principle 
 of Schelling. According to this philosophy, God is a 
 personal and living principle; the world is the revela- 
 tion of a living God, who is the original essence through 
 autonomasia. AHRENS, who applies the ideas of Krause 
 to the sciences of law and of the State, holds that the 
 theory of this philosophy harmonizes the two general 
 methods, the analytic and the synthetic (resting on an an- 
 alysis of all its relations of human nature in which law 
 appears as the principle of order); he reduces man 
 and humanity to God. The conception of law is there- 
 fore analytic in one aspect and synthetic in another. 
 Justice is a divine and human idea, and consists in the 
 untrammeled regularity of the life of all moral beings, 
 that is, in the organic complexes of conditions created 
 by God and humanity, so that reasonable beings may at- 
 tain their rational ends. Law, on the one hand, is distinct 
 from morals and religion and, on the other, is intimately 
 connected with them, in that it represents their condi- 
 tional side, giving conditions suitable to existence and 
 development to all the fundamental elements of life. 
 There is no side of life with which law has no relation. 
 Law not only limits and protects, but tends to 
 fulfill and aid the individual activities. In every 
 subject, it recognizes two elements, the personal and the 
 social; and tries to reconcile them in the various insti-
 
 ROSMINI, KRAUSE, SCHELLING, ETC. 79 
 
 tutions. The State represents the law; it does not 
 absorb the individual or society. The rules should 
 be different for the spheres of science, art, industry, 
 commerce, morals, and religion. The State's duty is to 
 maintain the social development in the life of justice 
 and to assure the means of perfection to every branch 
 of human knowledge. The State may be called the medi- 
 ator between the individual and society, but it is nothing 
 more than one of the principal organs of the vast or- 
 ganism of society. Society is an organic whole, result- 
 ing from diverse institutions, each of which is referable 
 to an important side of human life. All institutions 
 are higher forms of existing society in epochs of 
 maturity and social harmony. 
 
 Between Kant and Hegel there are philosophical doc- 
 trines based on an irrational principle of the world. 
 JACOBI regards the absolute as not irrational in itself 
 but as unknowable for us. The absolute for him was only 
 an object of sentiment and faith; Schelling passes from 
 rationalism to irrationalism, 1 when he abandons the pre- 
 supposition of the identity of the real and ideal as reason 
 and yet (remaining a monist) teaches that everything 
 is derived from an unconscious will, which is force. 
 In mechanics, life, sensation, and instinct, the uncon- 
 scious will (universal force) is blind and fatal. In history 
 there is an internal individualization of the principle 
 of force accompanied by consciousness. History begins 
 with the separation of the will as an individual conscious 
 force from the will as a cosmic force ; and in this separa- 
 tion lies the origin of evil. History proceeds with the 
 conscious and untrammeled prevalence of the general 
 will over the individual, that is, through the intelligence 
 and the spontaneous dedication of the individual wills 
 to the ends and purposes of the general will. 
 
 1 See supra, p. 63.
 
 80 INTRODUCTORY SURVEY 
 
 Also, in the last phase of his philosophy, Schelling 
 abandons realism. Existence, qua existence, is a 
 fact for the mind, which alone can have a conception 
 of it. Our knowledge is exclusively based on exper- 
 ience which, understood in its common meaning, can- 
 not include the absolute. But there is an experience of 
 another kind, human experience, or the religious con- 
 sciousness of man in his historical development, which 
 is capable of revealing spontaneously the absolute 
 principle. 
 
 On the last phase of Schelling's speculation, STAHL, 
 (who has a great reputation among the critics of the 
 historical school) bases his arguments. Stahl admits 
 that the world is the effect of the free creation of a per- 
 sonal God (the object of a higher experience), and that 
 in history sovereign intelligence and divine control 
 are shown. The great progress, he says, of our century 
 in the philosophy of law and politics is due to the prin- 
 ciple of objectivity, understood even by Hegel in a logi- 
 cal sense. It is necessary to understand objectivity in a 
 real sense, and therefore to raise as a rule of law the effec- 
 tive and concrete order of life, that is, the structure and 
 economy of the human family, made by a power superior 
 to man with ethical or final laws, immanent in all rela- 
 tions. Stahl is the author of a doctrine of a historico- 
 theological character. 
 
 SCHOPENHAUER considers the world as representation 
 and will. The representation is phenomenon, illusion; 
 the will is real, noumenon, placed outside the repre- 
 sentative sphere. Man does not represent only the body, 
 but feels immediate dependence on the will, as the latter's 
 true and direct expression. Pleasure and pain indicate 
 the agreement or disagreement of corporeal motion 
 with acts of will. The will is the principle of the world 
 inasmuch as it is separate from consciousness, and
 
 ROSMINI, KRAUSE, SCHELLING, ETC. 81 
 
 in its infinity is a cosmic force. Will is gravitation, mag- 
 netism, the force of sorrow, instinct, the intentional 
 acts of man, which are the effect of the necessary deter- 
 mination of motive. Will is a blind force, a tendency to 
 objectivity and life. Phenomenon exists through the 
 objectivation of the will, and the will becomes objective 
 through its exercise. Hence, cognition is explained by the 
 will, the essence of the world. Human will cannot go be- 
 yond representation for its motive and purpose, and it 
 cannot equal the single and blind will as a cosmic force. 
 It surfers from this hindrance; and hence pain and 
 grief. We can free ourselves from phenomenon in an 
 essentially ethical manner. Will produces the individuals 
 in whom there are two stimuli, egoism and altruism, 
 the one referable to us as intellect, the other as will. 
 Egoism will not take us outside our individuality; al- 
 truism places us in a general relation. Man should strug- 
 gle against egoism and participate in another's pains, 
 and so obtain moral perfection. But since our will can- 
 not be separated entirely from representation, the only 
 virtue lies in self-resignation to fate. HARTMANN follows 
 Schopenhauer and places the primal principle of things 
 in the unknowable. Hartmann's unknowable is the ab- 
 solute, the unconscious, the unity of the will and idea, 
 that is, of force without thought and of thought without 
 force.
 
 82 INTRODUCTORY SURVEY 
 
 XIII 
 MATERIALISM, POSITIVISM, AND CRITICISM 
 
 Irrationalism confuses the absolute with the data 
 of experience or force; but force cannot be conceived 
 of by itself, without thinking of the real as a substance; 
 whence it follows that the irrational essence of the world 
 is matter. Such is the logical bond between the accen- 
 tuated forms of rationalism and materialism. The 
 principles of contemporary materialism are the unity, 
 transmissibility, and constancy of matter and force, 
 and the circulation of the latter. From these principles 
 it infers that mental force is a property of matter, that 
 thought circulates as all other forces, and that psychic 
 force is reducible to motion. 
 
 Everything is derived from matter and motion. With 
 the different groupings of the atom, and the transfor- 
 mation by motion, everything is explained. Nothing is 
 known of spiritual entities apart from matter ; and there- 
 fore one cannot speak of their reciprocal action. The 
 series of physical actions develops parallel to that of the 
 psychological actions, and so the same phenomenon has 
 two aspects and is bilateral, because from an objective 
 point of view it is related to the former series, while 
 subjectively it is referable to the second. 
 
 The positivism of COMTE declared impossible absolute 
 knowledge or the knowledge of the primal cause, of 
 essence and finality ; it limited cognition to law, that is, 
 to the constant relation of phenomena. Positive phil- 
 osophy adopts the methods of the logical and classical 
 sciences, of which it is a generalization, and therefore 
 unifies the most general laws of knowledge and gives 
 methods of discovery and proof, and establishes the
 
 MATERIALISM, POSITIVISM, ETC. 83 
 
 control of the sciences themselves. The mind, accord- 
 ing to Comte, who in this has followed TURGOT, passes 
 through three states, the theological, metaphysical, and 
 positive. In theology, the principles of things are 
 divine entities; in metaphysics, abstract conceptions 
 rule as real causes ; in positivism the ever-changing phe- 
 nomena, found by the aid of experience, govern all rela- 
 tions. The phenomena are more or less complex ; the more 
 simple are the more general, and the more complex are 
 the more particular. Their general application is in 
 inverse ratio to their complexity. The sciences, there- 
 fore, can be classified as follows: First, Mathematics; 
 second, Astronomy; third, Physics; fourth, Chemistry; 
 fifth, Biology; and sixth, Sociology. This classification 
 is made on the ground that the last science presupposes 
 all the others and that the first presupposes no other. 
 Astronomy presupposes Mathematics, Chemistry, 
 Physics; Biology leads to the development of Chemis- 
 try, and the other sciences in the prior grade of the classi- 
 fication. Sociology is the last science. 
 
 All sciences pass through the three states, except 
 mathematics, which has no precedent theological state. 
 Progress lies in the gradual succession of states; Soci- 
 ology is still concerned with metaphysical entities, and 
 must be developed into a state of positivism. In the 
 theological state of social science, the regulation of con- 
 duct is given to God; in the metaphysical state, duties, 
 rights, and authorities govern human nature, under- 
 stood abstractly and hypothetically. The principal 
 theories of liberalism (for example, equality and popular 
 sovereignty) belong to this phase, which now should 
 belong to the past. The revolutionary doctrine of 
 equality is abstract and metaphysical (containing only 
 the negation of fictitious and artificial inequalities). 
 The principle of popular sovereignty is not positive,
 
 84 INTRODUCTORY SURVEY 
 
 because the people are not capable of controlling the 
 State; it can be received only as a conception from 
 which the people's right to escape oppression may be 
 derived. Sociology will effectively enter the third 
 phase, when it is based on experience and considers 
 man not as an abstract but as a historical entity. His- 
 torical experience determines and deduction proves the 
 laws of society, reconstructing them, according to the 
 laws of human nature, which are as fixed as those of 
 biology. The law, discovered by historical experience, 
 is true and necessary, if it harmonizes with the prin- 
 ciples of human nature. Sociology proceeds from the 
 whole to the parts (differing from the other sciences), 
 because it is based on a collective fact. A social phe- 
 nomenon has no meaning unless it is put in relation to 
 all the others to which it is connected, and unless it is 
 studied from all its aspects. Sociology is divided 
 into two parts: Statistics, considering the laws of equi- 
 librium and the conditions of the existence of the social 
 elements ; and Dynamics, referring to motion and progress. 
 Progress is the prevalence of the highest human activity. 
 Its great factor is the development of the intellect. 
 
 Positivism does not remain in its first phase, but be- 
 comes constructive and critical. The immense progress 
 of the natural sciences, their rapid and important dis- 
 coveries, and the new physical, chemical, and biological 
 theories furnish a more ample content to positive phil- 
 osophy. Founded on the sciences, it cannot fail to be de- 
 veloped and modified with their advance. The doctrine of 
 evolution, which has gradually developed in realm of the 
 natural sciences, with essentially an objective, experi- 
 mental, and mechanical character, has made positivism 
 evolutionistic. From now on, positive philosophy will 
 be the general theory of evolution and transformation. 
 As the particular sciences advance, increasing the quan-
 
 MATERIALISM, POSITIVISM, ETC. 85 
 
 tity of principles applicable to a growing number of 
 natural phenomena, it is not possible to hold that the 
 essences and the primal causes will remain eternally 
 hidden. Scientific experience refutes such a state- 
 ment, therefore the mind must not be forbidden 
 to search for the primal elements of things created in 
 the breast of positivism. On the other hand, mechani- 
 cal evolution cannot be applied in its purity and sim- 
 plicity to the phenomenon of higher orders; and this 
 necessitates giving evolution different means according 
 to its grade of existence. Of this new phase of posi- 
 tivism, and, in particular, of the philosophy of Spencer, 
 we shall treat at length in the following chapters. 
 
 The ancient metaphysics were destroyed by Kant, 
 who corrects the ancient empiricism with the prin- 
 ciple of the spontaneity and originality of thought. 
 After Kant, absolute idealism attempted the reconstruc- 
 tion of realism by dialectics. And positivism made the 
 same attempt, using science and experimental proof. 
 Both movements were unsatisfactory to many philoso- 
 phers, who believed that the first gave thought an objec- 
 tivity independent of experience and separated it from 
 reality, and that the second resulted, in the last analysis, 
 in materialism, reducing everything to matter, motion, 
 and mechanical laws. 
 
 The modern philosophers on whom we would lay em- 
 phasis are the followers of the NED-CRITICISM, who con- 
 sider the analysis of knowledge made by Kant as a 
 fundamental physical doctrine, when purified of the dog- 
 matic residual of "the thing in itself." The Neo-Critics 
 agree in stating that metaphysics are an illegitimate 
 production of the mind, and that modern experimental 
 philosophy has not a strictly scientific character, in that 
 it contains some presuppositions of theory not verified 
 nor verifiable. Some of them think that experimental
 
 86 INTRODUCTORY SURVEY 
 
 speculation (though it has not always a truly scientific 
 character) is the best manner of contemplating reality, 
 because evolutionary monism is the concept that best 
 corresponds to the present state of cognition furnished 
 by the various sciences, but we must not believe that 
 the first principle has been determined or the supreme 
 law of evolution shown. External observation (say these 
 Neo-Critics) gives us only matter and motion; internal 
 observation gives us thought already formed and does 
 not show us how thought joins to the mechanical fact. 
 In conclusion, evolutionary monism, according to these 
 philosophers, is more a contemplation than a demon- 
 stration of the real. It is a useful hypothesis, and 
 has more value than dualism, the worst of the metaphys- 
 ical systems. 
 
 It is easy to deduce ethical ideas from the principles 
 upon which the diverse movements of contemporary 
 thought are based. It is plain that hedonism must be 
 the basis of ethics in the greater number of these doc- 
 trines, which are founded on the stimulating effect of pleas- 
 ure and pain, on organic needs and utility, and proceed 
 in harmony with the laws of association, custom, heredity, 
 and public opinion. To such ethical, juristical, and 
 political ideas, and to the theoretical principles from 
 which they spring, there will be ample consideration 
 given in the general part of this work.
 
 BOOK I 
 
 CHAPTER I 
 
 THE IDEA OF THE PHILOSOPHY OF 
 THE LAW 
 
 PHILOSOPHY AND THE SCIENCES. THE CHARACTER OF MODERN 
 PHILOSOPHY AS FORESHADOWED BY VICO. PHILOSOPHY OF THE 
 LAW AS PART OF PHILOSOPHY. THE HUMAN IDEA OF LAW 
 ACCORDING TO THE DOCTRINE OF VICO. AND THE DEFINITIONS 
 OF KANT. HEGEL. TRENDELENBURG, ROMAGNOSI. AND ROSMINI. 
 THE SOCIAL AND LEGAL THEORIES. LAW AND POSITIVE 
 PHILOSOPHY. 
 
 1. Philosophy and the Sciences. The mind is suited 
 by its very nature to develop from common and 
 superficial knowledge of things to scientific reflection 
 indicative of causes and reasons, and from that to 
 Philosophy, which looks to the ultimate principles 
 and supreme reason of entities as parts of the universe. 
 Philosophy is the most general and elevated system of 
 the fundamental principles and concepts of the mind, 
 because it tends to correlate fully and intimately the 
 mother-ideas, from which the different sciences spring. 
 From this, it follows that there is and can be no natural 
 disagreement between the Sciences and Philosophy. 
 
 2. Sciences Make for Unification. The demand 
 for a system or deep organic correlation of ideas (in 
 which none can stand without the others, and all, 
 interpenetrating, are derived from a common principle) 
 is shown by the history of the positive and speculative 
 sciences, which tend constantly to the acquisition
 
 88 THE PHILOSOPHY OF THE LAW 
 
 of such a form of coordination. Physics, for example, 
 reviving the Cartesian concept, makes clear the genetic 
 development of forces with only two presuppositions, 
 matter and motion, because it is enabled through the new 
 and important discoveries to reduce the phenomena of 
 electricity, magnetism, heat, and light, to the unity of 
 molecular mechanics. 
 
 3. Philosophy a Part of every Science. If the mind 
 feels the need of the systemization and genetic develop- 
 ment in the particular branches of knowledge, it cannot 
 fail to feel it in the broader sphere of complete knowl- 
 edge. And thus it is that with the growth of the quan- 
 tity of notions the necessity of their coordination arises. 
 Philosophy, which is the ultimate ideal of coordination 
 (although not recognized in that form but rather as 
 the absolute centre of all codes of knowledge), gains 
 new life in the realms of the particular sciences, which 
 are thus prompted to exceed their proper bounds. The 
 physics and chemistries that deny philosophy become 
 metaphysical and metachemical, and at the same time 
 are based on a philosophical theory of an original 
 atomic constitution. Such a theory can be called 
 philosophical because there is no microscope in the 
 world that can show the intimate and actual struc- 
 ture of matter. No one of the followers of studies 
 of nature, who are enemies of philosophy, keeps 
 within the bounds of his proper sphere. The phy- 
 sicist would explain chemical phenomena by mechanics ; 
 the chemist invades the realm of the physiologist; 
 and the physiologist usurps the office of the psychol- 
 ogist. Each constructs a kind of philosophy in the re- 
 stricted field of his chosen study and nevertheless all 
 of them deny philosophy. At one time the Romanist 
 was as irate against science as the theologian, because 
 he thought that the dictates of Roman legislation were
 
 DEPENDS UPON THE SCIENCES 89 
 
 oracles of written reason, and he unceasingly accused the 
 philosophers of a desire to place their cerebrine equity 
 at the head of human knowledge. The anger has notably 
 decreased among the new school of Romanists, but 
 the tendency still exists and is often shown. So it is 
 that, with the purpose of exchanging rational for positive 
 law, philosophy is denied on one hand, and recognized 
 in a manner of its own on the other, by the acceptor 
 of the "jus positum in Romana civitate " as "ratio." 
 
 4. Philosophy Depends upon the Sciences. Since 
 philosophy is the science that systemizes the mother- 
 ideas of the particular sciences, it is evident that it 
 cannot be separated from the latter. The natural- 
 ists seem to desire to make plain the schism by holding 
 up the speculative processes to ridicule; but this is 
 more apparent than real, because, in the last analysis, 
 they only wish to free the natural sciences from the con- 
 cepts of the old philosophy of the Middle Ages, which 
 placed divine mysteries in the midst of sensible phe- 
 nomena and confused them with human purposes, sym- 
 pathies, antipathies, and senses. We all know that 
 Galileo banished mystery and human prejudices from 
 the realm of nature, to which he restored its proper 
 language by recognizing a profound and real connection 
 in its various transformations. And apart from the 
 question of Galileo's conclusions, it is no longer a subject 
 of doubt that from the coordination and subordination 
 of the most general concept of various branches of 
 knowledge regarding nature, there is derived a natural 
 philosophy not disjoint from the positive sciences 
 nor existent without their progress. Likewise, we 
 must admit the possibility of a supreme science of 
 history, in which will be joined all historical studies 
 and auxiliary pursuits, and of a philosophy of linguistics, 
 which will develop with an extended and profound
 
 &0 THE PHILOSOPHY OF THE LAW 
 
 knowledge of the development of words and with the long 
 and tedious work of comparing the forms of various lan- 
 guages. 
 
 5. Metaphysics and Necessity. "No more meta- 
 physics," is the cry of many. Distribute the objects 
 they comprehend among the different particular 
 sciences. From the criticism of philosophy, they add, 
 arises its denial. But some recent positivists point out 
 that the very denial of philosophy connotes philosophy; 
 because it is necessary to show the impossibility of 
 transcendental knowledge, this proof is essentially specu- 
 lative and philosophical, and cannot be made except by 
 searching the conditions and possibility of real knowledge, 
 constructing thus a theory of cognition and a science, 
 that is, logic. Neither the origin nor value of knowledge 
 can be determined without attention to the relation 
 between knowledge and its objects; whence the cosmo- 
 logical doctrine. From another point of view, the mind 
 is urged to discover the meaning of existence and of the 
 reality of things in regard to the ends of life; and this 
 is the origin of ethics. Philosophy is the unity of the 
 sciences, those positivists continue ; it is the systemization 
 and critical analysis of the mother-ideas, to which they 
 are reducible. The sciences presuppose such ideas. Phil- 
 osophy is needed in their discussion, and therefore the 
 state of dissension between this system and the philosoph- 
 ical schools should be no cause of wonder. If the sciences, 
 because of their constitution, do not contain serious 
 grounds of disagreement that make the progress of 
 philosophy hard, it is because they do not seek funda- 
 mental ideas. Every science, in its development, 
 discovers relations always more general, and approaches 
 the rules of law that are common to the phenomena 
 of different sciences. These laws can be called cos- 
 mic, since they connect mechanical, chemical, and
 
 THE HIGHEST PRINCIPLES OF LAW 91 
 
 biological truths. As the sciences approach such prin- 
 ciples, the need of metaphysics is felt, which cannot 
 fail to be experimental and scientific in our days, 
 and which should be admitted, according to Lewes, 
 Wundt, and Anguilli, for the reasons above indicated. 
 Be that as it may, it is clear that Metaphysics 
 arise from the grave to aid the work of these very 
 positivists. Positivism, says Anguilli, in "La Filosofia e 
 la Scuola," cannot remain dogmatic, cannot renounce the 
 search of the principles of knowledge and existence, 
 when all the sciences are aimed at raising the veil that 
 covers their origin. Positivism should be critical. 
 It should leave the questions about the possibility of the 
 knowledge of essences and causes open. It cannot be said 
 a priori that the essences and causes are not knowable 
 and that it is not possible to discover first principles. 
 This was the mistake of Comte, who has reduced phil- 
 osophy to a mere codification of natural law and a 
 classification of the sciences, ignoring its higher duty 
 to systematize the mother-ideas. 
 
 6. The Philosophy of Law. The PHILOSOPHY OF 
 LAW, a part of philosophy, is the science of the highest 
 principles of law. It should not, therefore, be separated 
 from the complexes of positive and historical studies 
 of jurisprudence and of social and political sciences. 
 It is not in the least possible to determine the remote 
 rationale of the law considered by itself and in its 
 relation to the individual, society, and the State, apart 
 from its mediate and proximate principles. The mind 
 ascends from what is particular and close to sense to 
 what is universal and distant. It develops from what 
 is only primal for us to what is primal for nature, 
 according to Aristotle. Of course, whatever is par- 
 ticular and positive is not the direct and proper 
 object of philosophy, but 'constitutes the necessary
 
 92 THE PHILOSOPHY OF THE LAW 
 
 foundation of it. Physics, chemistry and biology are 
 not of themselves the philosophy of nature, but it 
 cannot be developed without great reliance on such stud- 
 ies. Philosophy is always the last to make its appearance ; 
 life must be mature and the particular scientific modes 
 of knowledge must be numerous and developed before 
 we can have a philosophy. The black bat of Minerva, 
 as Hegel says on this subject, wings his flight only in 
 the night. 
 
 7. Character of Modern Philosophy as Foreshadowed 
 by Vico. Modern philosophy has an original tendency 
 to keep itself free from blind empiricism and from the 
 metaphysics of abstract and empty thought. It is 
 fundamentally one with the metaphysics of the 
 human mind discovered by Vico, which advance 
 with the history of human ideas. What is this human 
 idea? Several places in the "Scienza Nuova" explain 
 it clearly. The nature of things, writes Vico, is nothing 
 but their origin in certain times and certain forms; and 
 as the times and forms are, so and not otherwise are things 
 born. Now this means, on the one hand, that the 
 true nature of things is shown in motion and evolution 
 and does not lie in quiescent essences, placed beyond the 
 sphere of phenomena; and, on the other hand, it indi- 
 cates the principle of necessity relative to certain times 
 and certain forms, very different from the abstract, 
 purely absolute logical necessity. And from this comes 
 the other dictum, that theory should begin at the time 
 when the matter of which it treats begins. The true ob- 
 ject of science is to determine the nature of beings, and 
 this lies in their genesis of birth. 
 
 8. Vico's Philosophy is Historical and not Abstract. 
 To discover the nature of human things, continues the 
 Neapolitan philosopher, we must institute a severe 
 analysis of thought concerning the necessities and
 
 VICO'S PHILOSOPHY PRACTICAL 93 
 
 utilities of social life, which are the two perennial sources 
 of the natural law of mankind. And through such a prin- 
 ciple, this science is the history of human ideas on which 
 it seems the metaphysics of the human mind should be 
 based. At this point, we should remember the first un- 
 doubted principle of Vico, which is that the world of 
 nations should find its form within the modifications of the 
 human mind. He founded on this a science that deals 
 with idea as it is shown by actions a science that origi- 
 nates and moves with life. He was the discoverer of the 
 philosophy of history. The new science withdraws 
 from the empty and transcendental speculation of the 
 Middle Ages and advances to ideas intrinsic in the deed, 
 that is, to historical or human ideas. In this lies the 
 great discovery and the great merit of Vico. 
 
 9. Vico's Philosophy is Practical. The concep- 
 tion of the intimate conjunction of philosophy with 
 history is - illustrated by Vico in three other "golden 
 passages " (as he was wont to say in speaking of the 
 words of wisdom of the classical writers). Philosophy 
 contemplates reason, whence arises the science of the true ; 
 philology observes the authority of the human free will, 
 whence comes the knowledge of the certain. Human 
 free will, of a nature most uncertain, becomes certain 
 and determinate through the common sense of men in re- 
 gard to human necessities and utilities. This common 
 sense is a judgment without any reflection, commonly 
 felt by a whole class, people, or nation, or by all of 
 mankind. The certain is referable to the language and 
 acts of people; thus, at home it is shown as customs 
 and laws, and abroad as peace, war, alliances, voyages, 
 and trade. Those philosophers who do not make cer- 
 tain their rationale under the authority of philology fail 
 in their sphere. The philologists fail who do not prove 
 their authority by philosophical reasoning. If this had
 
 94 THE PHILOSOPHY OF THE LAW 
 
 been done, they would have been more useful to all coun- 
 tries and would have been foremost in developing this 
 science. 
 
 10. Vico showed the Different Bases of Rational and 
 Positive Law. Vico teaches, in conformity with these 
 principles in his book, "De Universi Juris Principio et Fine 
 Uno," that the science of law should be based on reason or 
 philosophy and authority or philology, because the law 
 concerns the true and the certain, that is, reason and au- 
 thority. The certain is part of the true, and authority 
 is part of reason and is not license; hence the distinction 
 between the reason of the law, which makes for truth, and 
 the mind of the law, which regards the certain. And from 
 this comes the speculative thought of a conciliation be- 
 tween positive and rational law. But this last thought 
 has its origin in a concept of the philosophers and 
 Roman jurisconsults. According to Cicero, the "jus 
 naturae" depends upon the "naturalis ratio," as civil or 
 positive law gets its being from "civilis ratio." Gaius 
 defines the "jus gentium" as "Quod naturalis ratio 
 inter omnes homines constituit." For Cicero and Gaius, 
 therefore, the "naturalis ratio" is "constitutivum" and 
 the common observation of it by the people is the 
 "consecutivum." 
 
 11. The Difference and Similarity of Rational and 
 Positive Law. Admitting the difference and at the same 
 time the connection between the true and the certain, posi- 
 tive law is not entirely identical with nor entirely opposed 
 to rational law. " Jus civile," say sUlpian, "estquodneque 
 in totum a naturali vel gentium recedit nee per omnia ei 
 servit; itaque cum aliquid addimus vel detrahimus juri 
 communi jus proprium id est civile efficimus." It 
 realizes the ideal law, following the law of the evolution 
 of ages, which is the same law as that of the development 
 of knowledge. Man's power is only bounded by his
 
 NOT BASED ON "A PRIORI " PRINCIPLES 95 
 
 will, and his will by his knowledge. As to knowledge, 
 he is first sense, then imagination, and finally reason; and 
 therefore the State must pass through three ages ; the 
 mute, the heroic, and the human. Law in its arboreal 
 state is legitimate violence, later it becomes more gentle, 
 and attains perfection through naked truth and generous 
 reason. Grotius, Selden, and Puffendorf are wrong, 
 because they do not begin their theory from the time 
 when nations began, but start with their researches fur- 
 ther on, that is, from the first days of the ennobled 
 nations and of men enlightened by fully developed natural 
 reason. From such nations came the philosophers who 
 developed by meditation a perfect idea of justice. The 
 system of natural law cannot fail to be governed by the 
 principle that the order of ideas must proceed in accord- 
 ance with the objective order. The natural law of 
 nations has come out of the customs of the nations 
 mutually in accord in common sense, without reflection 
 and without using one another as an example. 
 
 12. The Philosophy of Law cannot be Based on "a 
 priori' 1 Principles. If law is a human idea, if it has truth 
 and certainty, it is not possible to base the philosophy of 
 law on its a priori principles alone, considering the fact 
 merely as an example, as Kant states in his "Metaphys- 
 ische Anf angsgrunde der Rechtslehre ;' ' because the certain 
 is always part of the true and enters into a philosophy 
 not as particular and separate entity, but as a generalized 
 whole. Philosophy should not be occupied with this or 
 that reality in kind, but should rather comprehend and 
 explain reality of itself. Philosophical reality is ideal, 
 rational, conscious, as true ideality is of itself real. Kant 
 is wrong in excluding the certain in general from the phil- 
 osophical system of law, although he is right when he 
 recognizes in cases of experience, that is, in particular 
 and secondary forms, so many objects of positive or his-
 
 96 THE PHILOSOPHY OF THE LAW 
 
 torical law which cannot furnish philosophy with more 
 than material of example or illustration. These cases 
 no longer belong to positive law, and cease to be cases 
 when raised by speculation to phases or moments of the 
 human idea of law. 
 
 13. Vico's Theory Upheld by Modern Philosophers. 
 Vice's conception of law and his philosophy are sub- 
 stantially reenforced in the definitions cf the greatest 
 modern writers. Hegel, for example, says ("Grundlinien 
 der Philosophic des Rechts,") that such a science has for 
 its object law and its effectuation. We must not forget 
 that in his mind the ideal is real and the real is ideal, and 
 that thus the idea by its essence becomes fact and the 
 fact is part of the idea of truth, taking the form of the 
 certain, as Vico teaches. In Hegel's mind, not every- 
 thing that happens is ideal, although what happens and is, 
 as he expresses it, is necessary and permanent in moral 
 cosmics, and is therefore the actualizaticn cf reason. 
 Yet he warns us not to put the relative in the place of the 
 absolute and to confuse historical explanation with judg- 
 ment on the intrinsic legitimacy of fact. Trendelenburg, 
 in his "Naturrecht auf den Grunde der Ethik," writes 
 that the philosophy of law should be concerned with the 
 highest principles of law, which can only be discovered 
 in history (wherein lies, as Aristotle says, the test of the 
 worth of all theories). He adds that the rational and his- 
 torical conceptions, sometimes seemingly in opposition, 
 are fundamentally one; that man is essentially an his- 
 torical being, and that it is not foreign to profound phil- 
 osophical comprehension to determine what is the ideal 
 in each stage or moment of the life of a people. Among 
 the Italians, Romagnosi, who follows Vico's doctrine 
 about the true and the certain, admits, in his "Assunto 
 Primo della Scienza del Diritto Naturale," that natural 
 law is controlled by coercive reason, which affects objects
 
 THEORY OF THE POSITIVISTS 97 
 
 according to their position, and that under this second 
 aspect it is as pliant and variable as the circumstances 
 and changes of opportunity. Finally, Rosmini in his 
 "Filosofia del Diritto" very willingly agrees with the Ger- 
 man philosophers, who are the followers of Kant, that the 
 historical element of fact does not enter into a science 
 which is wholly speculative reason. Nevertheless, he 
 speaks of an universal philosophy of law that has three 
 parts: Rational law, the theory of positive law, and 
 their critic. The theory of positive law and the critic 
 form the philosophy of positive law. Rosmini declares 
 that he desires to treat of rational law, denominated by 
 him philosophy of law, because this title indicates the 
 above fusion of the three parts. In other words, he 
 finds the intimate connection between the true and cer- 
 tain in the separation of the supreme science of law, 
 although he does not conceive of law as the human idea, 
 as an idea-fact. 
 
 14. Vico's Theory is that of the Positivists. 
 Positivist philosophy can be reduced to Vico's theory, 
 which conceives of law as a phenomenal reality, as a nat- 
 ural formation, seeking for its causes in the social 
 element, in the physio-psychical activities of common 
 life, in the forces that precede development, and in 
 the evolutionary motion of things. They agree in 
 explaining that this natural formation is intimately 
 connected with a series of social idealities, anthropol- 
 ogy, psychology of peoples, ethnology, the history of 
 civilization and of juridical institutions, and compara- 
 tive jurisprudence. Research, as can be seen, gives 
 preference to the doctrine of evolution, and is psycho- 
 genetical and historical, because law is particularly a fact 
 depending upon thought and will, and develops in human 
 life. In other words, it is an ethical and historical fact 
 whose primal elements, genesis, and transformations
 
 98 THE PHILOSOPHY OF THE LAW 
 
 philosophy can discover. Now, Vico says it cannot be 
 denied that law is a phenomenal reality, since it con- 
 tains the certain; and can be called a natural forma- 
 tion, inasmuch as its nature is its origin, and as it is 
 derived from the analysis of thoughts about the neces- 
 sities and utilities of social life, and from the modifica- 
 tions of the human mind. These social idealities 
 which the law comprehends and of which it is born, 
 upon which positive philosophy often lays emphasis, are 
 really nothing more in Vice's words than the necessities 
 and utilities of social life. 
 
 15. Vico's Theory Considers the Influence of Eco- 
 nomics. The two perennial sources of the natural law of 
 nations are also connected with another doctrine now in 
 vogue, that is, with the doctrine that considers law in its 
 social aspect in relation to the purposes, needs, and inter- 
 ests of life. The doctrine is not new, because the more 
 idealistic philosophers have always believed in the in- 
 fluence of the conditions of life on law. Among the Italians, 
 Romagnosi is distinguished for his study of the relations of 
 law with life, and particularly with the latter's economic 
 factors. In Germany, Krause and Ahrens, in their defi- 
 nition of law, lay stress upon its relation with the 
 conditions of life. Vice's necessities and utilities of social 
 life correspond to the action of the economic factors, 
 though not considered predominant as Marx, De Greef, 
 and Loria claim they should be; they interpenetrate with 
 the two generating forces of law in the concrete sense, 
 which are, according to Stein, economic conditions and 
 the activity of the State. Such activity follows the 
 thoughts already indicated. The two perennial founts 
 are not foreign either to the theory of Ihering, who teaches 
 that there is a creative power in the law, and that it lies 
 in guaranteed interests. Ihering sees in the law a system 
 of protected powers and interests, that is, a system of
 
 THE SOCIAL RELATIONS 99 
 
 necessities and utilities of life. The two sources mean 
 simply the adaptation of human nature in its external 
 and social relations to this necessity and utility, an adap- 
 tation which is the chief feature of positive and evolu- 
 tionistic philosophy. 
 
 16. Law must Consider the Social Relations. The 
 social theory of law is not separable from the 
 juristic, if we must consider law as the human idea. 
 Pachmann has recently attempted such a separation, 
 but the attempt was not successful. He says that law is 
 the measure of the external freedom of man in common 
 life. Law is thus reduced to a system of norms which re- 
 gards the extrinsification of wills and actions, and limits 
 their measure ; the mission of the juristic science, properly 
 so called, is to show the relations, become norms or 
 principles, and to work them into a system, without con- 
 sidering them as facts. Such relations, as facts, enter the 
 domain of other sciences and can there form objects of 
 the social theory of law, in which the measure of free- 
 dom is studied in respect to purposes and interests. 
 The true juristic theory is dogmatics, which take the 
 measure as fixed in amount and determine the limits 
 of external freedom independent of objects as ends or in- 
 terests. It does not take much proof to show that the 
 juristic theory so conceived is an empty, abstract formula 
 and can be defined as mathematical, a computation 
 of concepts, a crystallization of the relations of life into 
 a mere sum, or a logical whole resulting from minutely 
 modulated rules and maxims. In such a theory, law 
 lacks concrete content and is separated from life and 
 the conditions of existence, becoming a bare mathemat- 
 ical form. History and reality have no longer anything 
 in common with law, thus transformed into a rigid for- 
 mula. The very definitions that we find in dogmatics 
 are not all possible, because not a few of them have ele-
 
 100 THE PHILOSOPHY OF THE LAW 
 
 ments derived from the nature of things. The system and 
 its technicalities grow into simply mental schemes 
 divorced from life. Law ceases then to be a reality 
 and a human idea. 
 
 17. Vico believes that Phenomena are Based on Reason. 
 The base of phenomenal reality is, in Vico's mind, 
 reason, which is also the base of law, since history in 
 his mind represents the true. Reason immanent in 
 reality, the true intrinsically one with the certain, are 
 resolved in the last analysis into a concept of conditions 
 necessary to existence, and the order and constitution 
 of things, and also into the unavoidable effects of acts 
 about which those positivists disagree who do not admit 
 absolute transformism. In this concept they place the 
 objective and necessary substratum of law, reproducing 
 the principles of Romagnosi. Law should be based upon 
 the real relation of things, and the connection of their 
 cause and effect, so that it should be observed in conduct 
 in order to obtain the good and avoid the bad. Here 
 the order of things is not transcendental, neither is 
 it beyond knowledge, but can be seen by the mind. The 
 ancient natural law is wrong, they add, because it starts 
 out with an a priori idea resting outside of experience 
 and life and not because it seeks a necessary and univer- 
 sal principle. 
 
 18. Vanni's Philosophy of Law. The philosophy 
 of law in critical positivism, writes Vanni, in "II Pro- 
 blema della Filosofia del Diritto," is the science of the 
 first principles of the genetico-evolutionary theory. It 
 is the analysis of the possibility and value of juristic 
 knowledge. It is the doctrine of the norms of action 
 coordinated in a purposeful system. In its first aspect, 
 it is the synthesis of the mother-ideas of all branches 
 of positive and particular knowledge, and there can be 
 no doubt on this point when we have once recognized
 
 POSITIVISTS ARE WRONG 101 
 
 the existence of such a study. Also, it cannot be 
 denied that it has also a critical duty and practical func- 
 tion, because it is called upon to analyze the idea of law 
 and to determine its value by an examination of the 
 logical processes which are applied to it. Is not this 
 philosophy perhaps essentially a theory of knowledge? 
 And can philosophy cease to be a criticism of knowledge 
 when it treats of law? If philosophy of law is a part 
 of ethics and if ethics explain the first principles of con- 
 duct, it is clear that it should give norms for con- 
 duct. When it is a question of a fact of conduct, the 
 study of the phenomena is not enough, but we must 
 know the reasons that induce us to favor or disfavor its 
 continuation in conformity to an ideal. It is said, and 
 correctly so, that ethics are a practical science, that 
 they not only seek the laws of moral acts but de- 
 termine the methods best adapted to changing them in 
 order to reach a state of perfection that does not yet 
 exist. 
 
 19. The Positivists are Wrong in Denying Special 
 Philosophies. There are positivists who do not wish to 
 recognize special philosophies and therefore deny the 
 philosophy of law, with the others. They say that there 
 is only one philosophy which unifies all knowledge (as 
 Spencer taught). The highest truths about one branch 
 of knowledge regard determinated orders of fact, and form 
 one or more sciences but never a philosophy. These 
 positivists do not reflect that if special philosophies are 
 part of the great philosophy, or the system of the supreme 
 principles of entire knowledge, they should not, therefore, 
 be deprived of a distinct existence. The special phil- 
 osophies presuppose the coordination of the first prin- 
 ciples of all knowledge, but they develop it fully with 
 respect to the few objects to which they apply, determin- 
 ing their particular method of existence and emphasizing
 
 102 THE PHILOSOPHY OF THE LAW 
 
 the differences or proper forms in relation to such objects. 
 The special philosophies are not detached and independ- 
 ent of philosophy, they cannot be separated from phil- 
 osophy, but lead to theories which show the various 
 contact of first principles with the diverse entities whose 
 elements they search for. Certainly, philosophy in 
 general without the special philosophies would not be 
 able to give sufficient development to the treatment of 
 supreme principles, since they apply in different manners 
 to different objects. We will see in the following pages 
 whether it is possible to apply purely and simply the more 
 general laws of the cosmos, for example, the physical 
 and mechanical laws, to all the products of evolution. 
 Whoever attempts to do it runs the risk of not explain- 
 ing the nature and value of the higher products of histori- 
 cal and ethical facts. It cannot be doubted that they 
 who will not accept the special philosophies because of 
 a single philosophy, obscure the real difference of entities 
 and tend to show unity or identity where none exists. 
 Scientific and philosophical discovery should be com- 
 plete and should not disregard a difference because of 
 a preconceived unity, nor sacrifice unity to a preconcep- 
 tion of difference. It is not its duty to alter the 
 effectual truth of things. 
 
 20. Distinction between the Philosophy of Law and 
 the Science of Legislation. We must guard ourselves, 
 in considering the philosophy of the law, against an 
 error contained in the books of Sumner Maine on the 
 history of primitive institutions and of law. Maine be- 
 lieves that the attempt to build up a system of jurispru- 
 dence on observation, comparison, and analysis of ideas 
 is due to Bentham, and even more to Austin, who are 
 very unjustly not known out of England. Austin and 
 Maine think that the object of jurisprudence is positive 
 law and that jurisprudence can either be particular and
 
 LAW AND LEGISLATION 103 
 
 national or general and comparative. This is the result 
 of abstraction, because the identical principles of the 
 various legislative systems are the same. General juris- 
 prudence is called by these two writers the philosophy 
 of positive law. The philosophy of positive law differs 
 from the science of legislation, because the former 
 studies the laws as they are, and the second, a branch of 
 ethics or deontology, shows how the laws should be made 
 so that they will conform to a type, that is, the divine 
 law identified with the principle of general utility. 
 Putting aside this last element of the theory, which 
 Maine denies, because such identity is not proved or 
 provable, it is undoubtedly true that general and com- 
 parative jurisprudence is very remote from the phil- 
 osophy of law in the true sense of the word. Philosophy 
 of law is the search of first and supreme principles, while 
 general jurisprudence recognizes similarities of fact, 
 or homonyms, and does not consider the reasons. The 
 analysis of ideas in which this jurisprudence is so valuable 
 never reaches a philosophical height. Rosmini's phil- 
 osophy of law is something very different, it is a higher 
 study. It is not purely rational law, but is rational law 
 applied to the science of legislation and to the critic of 
 law.
 
 104 LAW AND LOGICAL METHODS 
 
 CHAPTER II 
 THE IDEA OF LAW AND LOGICAL METHODS 
 
 INDUCTION AND DEDUCTION. INDUCTION, OBSERVATION, AND 
 EXPERIMENT. THE IDEA OF NATURAL LAW AND THAT OF THE 
 CIVIL GOOD (OF AMARI) AS SHOWN BY INDUCTION. THE IM- 
 PORTANCE OF THE COMPARATIVE HISTORICAL METHOD USED BY 
 VICO. AMARI, POST, AND MAINE. PARALLELISM IN THE DEVELOP- 
 MENT OF LANGUAGE AND LAW. STATISTICAL INDUCTION. 
 THE DUTY OF DEDUCTION. THE ABSTRACT AND CONCRETE 
 UNIVERSALS AS PRINCIPALS. 
 
 21. Law must be both Abstract and Relative. If law 
 has in it elements of the true and certain, it cannot 
 be explained in its integrity by abstract rationalism de- 
 veloped in a series of schemes fixed by reason, nor by 
 absolute relativism which sacrifices the ideality and 
 necessity of the law to the continuous and contradictory 
 happening of events. 
 
 22. Law must be Developed Inductively and Deduc- 
 tively. Vico himself determined the logical process by 
 which the idea of law should be developed, in these words: 
 The order of human ideas is to observe like things, first 
 to know and then to prove them ; that is, first with the ex- 
 ample, content with one thing, and later by induction, 
 which has need of more. Socrates, the father of all phil- 
 osophical schools, introduced dialectics with induction 
 and later Aristotle completed them with the syllogisms 
 which have no application without a universal. Hence 
 it follows that the human idea is first inductive and then 
 deductive. In fact, the mind proceeds from the partic-
 
 METHODS OF INDUCTION 105 
 
 ular to the discovery of the laws and causes of phenomena. 
 It does not, however, develop the rational necessity 
 of the discovered law, nor the method of causal ac- 
 tion within the empirical confines of induction. It 
 is a deductive process that leads to the proof of the 
 rational necessity of law, deriving it from a general 
 principle, and making clear the manner in which one 
 condition joins another to produce a phenomenon. When 
 these ideas are accepted, we can infer that the more the 
 certain is studied in juristic, social, and political ques- 
 tions, the broader will the true become. The certain 
 in such a subject assumes the form of an historical 
 fact or event, which becomes a numerical series or statis- 
 tical element, thus furnishing material for historical and 
 mathematical induction. 
 
 23. The Four Methods of Induction. Historical 
 induction is based more upon the observation of social 
 phenomena, including juristical and political events, 
 than on experiment, because the social phenomena are 
 even more complicated than the natural (especially 
 the physical and chemical) and therefore lend them- 
 selves less to artificial reproduction and voluntary 
 variation. Experiment can be made in four ways, 
 that is, by the method of agreement, by the inverse 
 method of difference, by the third, of concomitant 
 variations, and the last, of the residues. The first 
 is reducible to the elimination of various conditions 
 and to keeping one as the antecedent of a phenomenon. 
 The second, on the contrary, consists in the abstraction 
 of identical conditions and in keeping to the one that 
 varies as cause. The method of concomitant variation 
 is based upon the principle that a phenomenon that 
 varies in accordance with another is its cause or effect 
 or is at least connected with it by a chain of general 
 causality. The fourth is governed by the following law:
 
 106 LAW AND LOGICAL METHODS 
 
 "Subduct from any phenomenon such part as is known 
 by previous inductions to be the effect of certain ante- 
 cedents and the residue of the phenomenon is the effect 
 of the remaining antecedents." 1 
 
 24. The Experimental Methods Possible in Physiology. 
 There was a time when it was believed that the use of 
 experiment would not be possible in biological research. 
 In the century just past, Cuvier stated that physiology 
 was the science of mere observation, but in our own day 
 vivisection has taken remarkable strides. All the 
 famous physiologists adopt experimental methods, al- 
 though they freely state that experiment in physiology 
 has not the extension and logical force which it has in 
 physics and chemistry. They show the laws of the union 
 of the internal principle with the body, that is, the union 
 of psychical and organic action through the method of 
 agreement. In a great number of cases, this agreement 
 can be established, though in others the profundity 
 of the reflective operation and the subtleness of the 
 physical act escape observation. But even if these cases 
 do not confirm the results of agreement, they fail to 
 prove the contrary. Through this same method, asso- 
 ciated with the other of concomitant variations, the 
 modern physiologists show the law of relativity; that is, 
 the connection between the cause of an impression and 
 a state of consciousness, and through the agreement of 
 all the experimental methods are illustrated the laws 
 of memory and the conception of similarity. 
 
 25. The Experimental Methods Possible in Political 
 Sciences. Bain, in his "Logic," determines the principle 
 of the logic in the political sciences and recognizes, in 
 opposition to Stuart Mill, that in politics the above 
 methods offer useful help when they are applied with all 
 the limitations and cautions suggested by the particular 
 
 Will's Fourth Canon.
 
 HUMAN IDEA OF LAW 107 
 
 nature of social science (which is by far the most com- 
 plicated). Mill excludes experiment from political 
 economy because the phenomena of wealth are extremely 
 complicated. Experiment in social science (Bain points 
 out) does not mean the application of processes adapted 
 to the discovery of natural laws. So, for example, the 
 method of difference is not conducive to certain results 
 about the facts of civil life, since one cannot be sure that 
 the condition found is the sole effect or that there are not 
 unknown causes. But such uncertainty is lessened if a 
 force suddenly introduced is followed instantly by a 
 change. Take, for example, a suspension of diplomatic 
 relations between two nations coinciding with a marked 
 change in commercial values. On such a hypothesis 
 there are reasonable grounds for believing that the 
 severance has produced the disturbance. 
 
 26. Vico's Human Idea of Law proved by Historical 
 Induction. From historical induction, founded more 
 on observation than on experiment, is derived the 
 human idea of the law. In fact, the mind forms 
 of itself the concept of a natural law common to all, 
 after gathering and comparing many homonyms or 
 similarities between the diverse positive laws of dif- 
 ferent nations. In a universal consensus, in uni- 
 formity, or in the constancy of jurisprudence, there 
 is not a "ratio juris" but the "principium cognoscendi." 
 Uniform ideas, writes Vico, appearing among entire 
 peoples, unknown to each other, must have a common 
 motive of truth. This shows the great principle that 
 establishes the general consensus of opinion of mankind 
 as the criterion taught the nations by divine Providence 
 to define the certain in relation to the natural law of na- 
 tions. And even before Vico, Grotius stated that there 
 was a posteriori proof of natural law, if not absolutely 
 conclusive, at least highly evidential, by which we must
 
 108 LAW AND LOGICAL METHODS 
 
 consider as law what is held as such by all nations or 
 by the more civilized nations, because a universal effect 
 supposes a universal cause. A universal belief cannot 
 arise except from what is called the general consensus 
 of opinion. Cicero had already written, "Omnium con- 
 sensus naturae vox est." "Omni autem in re consentio 
 omnium gentium lex naturae putanda est." And Aris- 
 totle had not failed to notice that there was something 
 which all alike believe and which was by nature common 
 and was called law or justice, although there was no 
 agreement or communication. Socrates was the first 
 philosopher to speak of the unwritten laws of the gods 
 of universal observance. He gives as examples religion 
 and ancestor worship. Uniformity is the cognitive 
 criterion of natural law as shown by the very arguments 
 of those who do not believe in it. Carneades, Sextus 
 Empiricus, and their followers denied that there was 
 a natural law putting antinomies in place of similarities, 
 which shows that they implicitly admitted the above 
 criterion; they did not believe that there was a law 
 of nature because the discrepancy and contrast between 
 the laws of nations were so great that they could not 
 believe in a true and extended harmony. If this were 
 not so, and the concordance reducible to a frac- 
 tional part (they said), there would be a natural law and 
 they would recognize it. 
 
 27. Induction is Used in the Critic of Law. 
 In the other parts of philosophy of law and especially 
 in those composing (according to Rosmini) the philos- 
 ophy of positive law, that is in nomothesis and in the critic 
 of law, historical induction furnishes the first concepts. 
 Nomothesis and the critic of the law are not possible 
 without the principle of the just, which is always the 
 human idea, and without the concept of the civil good, 
 of which Amari treats in "Critica di una Scienza della
 
 FOLLOWERS OF VICO 109 
 
 Legislazione Comparata," or of the just in given form 
 in relation to the time and place and condition of a 
 determinate life. The mind raises itself in such a prin- 
 ciple inductively through the collective similarities of 
 law and their equation. It is not difficult to see that the 
 concept of civil good is formed in this way through 
 the long experience of social institutions and domestic 
 and foreign laws. Plato, the great idealist, compared 
 the laws of different nations; he taught that the City 
 would never be happy and civilized while ignorant of the 
 good and evil of the regulations of other countries. 
 Aristotle collected notes on many constitutions and 
 placed great reliance on legislative comparison dis- 
 tinguishing the absolute good from the possible and con- 
 ditional. Thus he founded the school that gives great 
 importance to the comparison of the laws, which was 
 taught by Theophrastus, Dicearchus, and Demetrius 
 Phalareus. 
 
 28. Followers of Vico and the Historico-Comparative 
 Method. After Vico and Amari, the historico-comparative 
 method was applied by Volcraff, who, however, did not 
 have sufficient material at his disposal, and by Bastiat, 
 who had made ethnological researches without philosoph- 
 ical intent, and by Post, who in his "Einleitung in die 
 Studien der Ethnologische Jurisprudenz" tends to an 
 experimental philosophy of law founded on ethnological 
 data and on the principle of the dependence of the jurid- 
 ical fact on other precedent facts in the cosmic series. 
 Maine is the author of very important studies of an 
 historico-comparative character. He is a thinker, how- 
 ever, and not a philosopher, although he rises to gen- 
 eralizations that are close to philosophical . He reconstructs 
 the fragments of the social and juristical life of the Aryan 
 peoples of a primitive age and gives us a paleontology, 
 an archeology, and a moral embryology, and tends to
 
 110 LAW AND LOGICAL METHODS 
 
 show the development and indicate the evolution of the 
 idea of law in the consciousness of that race, developing 
 sometimes into the philosophy of the history of law. 
 Vanni in "Gli Studi di Somner Maine e le Doctrine della 
 Filosofia del Diritto" determines clearly the nature of 
 the complete researches of this writer and notes the dif- 
 ference between his work and that of the others. Maine 
 applies the comparative method to the progressive or 
 undeveloped nations of different races. He is circumspect 
 and diffident about great syntheses and ethnological 
 theories and does not put great weight upon the analogies 
 between modern savages and primitive people. Most 
 sociologists, on the contrary, love great syntheses, prefer 
 ethnological intuitions, and use without scruple the above 
 analogies. Since Maine was an historian and not a phil- 
 osopher, it is useless to search his works for a complete 
 and satisfactory doctrine of the genesis of law. His 
 observations begin with a state of evolution relatively 
 advanced and refer to law when it is already formed, and 
 therefore do not contain a true social and juridical em- 
 bryology. 
 
 . 29. Parallelism in the Development of Language and 
 Law. The inductive formation of the above two branches 
 of the philosophy of law, understood in a broad sense, is 
 revealed in the parallel between languages .and law, 
 first noticed by Plato and later by Vico, Savigny, Puchta, 
 Amari, Ihering, and now outlined among the Italians 
 according to the results of positivism by Gaudenzi 
 in his book "Lingua e Diritto." The parallelism is real, 
 because language reflects the thought and law manifests 
 the acts of man ; the intrinsic connection between thought 
 and action is known. In concrete, the productive genius 
 of a people has the same powers in language and in law. 
 A proof of it is the character of Latin language in civili- 
 zation and the historic meaning of Roman law. Action
 
 PARALLELISM IN DEVELOPMENT 111 
 
 presupposes will and thought and is posterior to them; 
 therefore the development of language must be antece- 
 dent to that of law. When Rome was founded the Latin 
 language was formed, but the Twelve Tables appeared 
 three centuries later. The literary language was perfect 
 at the fall of the Republic, but the development of law 
 was only complete towards the end of the Empire. There 
 are local provincial dialects and national languages as 
 there are customs of county and statutes and national law. 
 Experience teaches us that language and national law 
 are always derived from the generalization of a local 
 dialect, and of the customs or laws of a particular prov- 
 ince. At the beginning, language had only enough words 
 to express sensible objects and law was active only in the 
 confines of material facts; later there appeared the 
 metaphor in language and the law developed through 
 symbols. The metaphor and symbol raised the mind from 
 the simple perception of the object of sense to the concep- 
 tion of intellectual facts and abstract ideas. Language 
 went through three stages. The first is called monosyl- 
 labic, and is formed of independent roots which do the 
 duty of both nouns and verbs; the second is called ag- 
 glutinative, because the roots are placed together, though 
 without internal variation, to express the various relations 
 of thought; and the third, in which the associated roots 
 are welded together in a homogeneous whole, is called 
 inflective. In law, there are three such distinct periods, 
 because the elements of juristic action are first shown in 
 a distinct and independent existence, then they unite 
 mechanically, and finally interpenetrate in a single 
 logical whole. The customs of barbarians, composed 
 of a most complicated system of petty rights, joined to- 
 gether only by tradition in the main, correspond to the 
 agglutinative stage. In the first steps of civilization, 
 states are found connected by language or by law for
 
 112 LAW AND LOGICAL METHODS 
 
 commerce or for some other reason. Grammar or the 
 nomothesis of language and criticism appear with the de- 
 velopment of language and art. First came Homer and 
 Pindar, and then Praxiphanes and Aristarchus; first 
 Ennius and Plautuswere admired and then came Orbilius 
 and Opilius. The same happened in respect to law, which 
 preceded the science of law and philosophy. Plato and 
 Aristotle were only possible after Lycurgus, Solon, and the 
 other legislators. Later philological studies consisted 
 in the researches of etymology, to which the first labors 
 of the Greeks are referable. After laws had been estab- 
 lished, jurisprudence investigated their genesis, and the 
 most celebrated jurisconsults, such as Labeo, Gaius, and 
 Ulpian wrote on this subject. From etymology joined to 
 grammatical studies there was an infinite distance 
 to a science of comparative linguistics, as there was 
 a veritable abyss between the parallelism of laws joined 
 to nomothesis and a science of comparative legislation. 
 30. Statistical and Mathematical Induction. In the 
 juristic, social, and political sciences, mathematic or 
 statistic induction is joined to the historical. The order 
 of numbers, observes Vico, although of simple and ab- 
 stract things, is a help to the large and compositive order 
 of human and civil affairs. (Statistical induction, 
 starting out with a group of homogeneous or comparable 
 facts gathered in the greatest number, reduces them to an 
 average which represents the mean between the various 
 extremes, a determinate quantity which is the most ap- 
 proximate sum of the many diverse numbers of like and 
 various terms.) The mean itself is a numerical formula 
 of the constant law that governs the quantity of a social 
 fact in a period, and therefore shows a general condition. 
 Mathematical induction (that succeeds to such a mean) 
 is a proper instrument of a statistical science, that is, 
 the systematic position of the social life of man and of
 
 STATISTICAL INDUCTION 113 
 
 the laws which arise from it, based on observation in mass. 
 Mathematical induction per se is the mainstay of logic 
 and is applied without distinction to social and natural 
 facts. But it remains a method for natural facts, and con- 
 stitutes an autonomous study of social facts and is called 
 statistics. The reason of this is shown by Rumelin in his 
 treatise on statistics, when he says that in nature unity 
 is typical, and in the human world it is individual. In 
 the observation of a natural fact, all the facts of the same 
 kind are observed; but when a person is the subject of 
 observation, society is not included in it. Since society 
 is a composite of very dissimilar individuals, the princi- 
 pal means to find the roots of the laws of that organism 
 must lie in the observation of the mass. Experiment 
 in this field of research takes a secondary place and ob- 
 servation of the mass prevails ; in the natural sciences the 
 contrary is true. Wagner in "Statistische Anthropolo- 
 gische Untersuchung der Gesetzmassigkeit in dem 
 Scheinbar Willkiirlichen Menschlichen Handlungen" 
 thinks that Rumelin generalizes too much, because it is 
 true only in physics and chemistry that every case is 
 typical and true, and not in biology. Physiological pro- 
 cesses bring in constant and accidental causes which com- 
 bine in a various and indefinite manner, and therefore 
 the phenomena of this kind present irregular and peculiar 
 characteristics. Certainly in the higher grades of the 
 evolution of nature there are found phenomena more com- 
 plicated, changeable, and irregular than in the lower. But 
 the combination and the variety of the superior forces 
 of nature should not be exchanged for human individu- 
 ality that results from auto-consciousness and auto- 
 determination, which are shown in the duosyllabic ego. 
 In this sense, Rumelin is right in recognizing that as we 
 ascend in the series of organisms, a greater number of 
 factors are seen in organic life, the combinations become
 
 114 LAW AND LOGICAL METHODS 
 
 more complex, and the field of variations extended, and 
 that in the physical and human world there is a grada- 
 tion and not an absolute separation between what is 
 typical and what is individual. No grain of sand, no 
 blade of grass resembles exactly another grain or blade, 
 but here the dissimilarities are small in comparison to the 
 similarities and are due to external circumstances. 
 In the human world, the savage is less individual than 
 the civilized man, the negro less than the white, the man 
 of the Middle Ages less than the man of to-day, the woman 
 less than the man, the ignorant less than the wise, 
 the brute less than him of gentler feelings. 
 
 31. Need of Statistics. Statistical induction shows 
 through numbers the constancy and regularity of social 
 phenomena, and increases the measure of the certain, 
 completing the work of historical induction, which 
 shows their quality. Numbers, weight, and measure 
 are not elements foreign to law, because it is generally 
 thought of as a rule of proportion, and by the Pytha- 
 goreans was confused with numbers themselves. The 
 intellect attains more easily the idea of measure or 
 proportion of reason, in which the law rests, after 
 noting the certain by observation and after measuring 
 it by mathematical induction. Numbers logically con- 
 sidered are intermediate elements between the sensible 
 fact and pure imagination, and therefore Plato and Galileo 
 placed mathematics between physic and metaphysics. 
 This helps us, because the progress of the physical 
 sciences, lying principally in substituting the expres- 
 sion of quantitative for qualitative functions, leads also 
 to an increase of the rational and apodeictical parts of the 
 same study. The relation between statistical induction, 
 nomothesis, and the critic of law is manifest, because the 
 concept of the civil good presupposes the concept of vary- 
 ing social conditions, which are shown in statistics, that
 
 DUTY OF INDUCTION 115 
 
 is,the"nosce teipsum" applied to the civil union and the 
 State, and represents the balance of the forces. There is 
 no important act of republican administration that can 
 be separated from the knowledge that the State should 
 have of itself or be entitled to as the measure or the de- 
 gree of its own power. And here is the first reason why in 
 our day statistics perform a public service. But there 
 is a second, and it lies in the demand of unlimited pub- 
 licity, since the government is free. And even those who 
 profess individualistic theories and look upon the State 
 as only a means of legal protection, allow it such a 
 function, because statistics are not a business and can- 
 not be gathered by private citizens without the State's 
 intervention. 
 
 32. The Duty of Induction. If experience without 
 a concept is no guide and the concept without sensible 
 data is useless, science is not possible without both in- 
 duction and deduction. Induction without deduction 
 is an empirical process only and does not show the ne- 
 cessity of the causal law or its method of action. 
 Deduction not preceded by induction is building castles 
 in the air of reason making theories without a basis 
 of fact. When a law is discovered through induction, 
 the mind feels a need of explaining its existence and 
 derivation. In such a case, the deductive process is 
 adopted, through which one can come upon principles 
 already known. One can conceive elements essentially, 
 or conditions organically, united and discover the 
 method of their combination which produces the effect 
 or constant fact, that is, the derivative law. It is not 
 true that the universal, from which the deduction starts, 
 is furnished with the character of necessity and is re- 
 ducible to an abbreviated formula of many particulars, 
 as Stuart Mill states in his "Logic." The universal of 
 this philosopher is a form distinct from the particular,
 
 116 LAW AND LOGICAL METHODS 
 
 but it is not a true and full universal, because it lies in 
 the sum of qualities accidentally common to several 
 things. It is discovered by the abstraction and com- 
 parison of singular data; it is of value only for them 
 and not for others, and is only shown by them. The 
 philosophers call such a universal, which has not the 
 character of necessity and will not go beyond the confines 
 of representation (differing from a concept), an imagina- 
 tion or common notion. Representation is accidental, 
 particular, various, and objective; a concept is necessary, 
 universal, constant, subjective, in that it expresses the 
 essence of things, and is the product of a function higher 
 than representation, that is, of thought. From thought 
 alone can necessity and universality be derived which 
 experience does not give us; from thought alone can 
 arise the generalization by which the true universal is 
 formed which is the essential unity of all possible objects 
 in all times and places. A concept is the true and full 
 universal, a principle of deduction, and comprehends 
 all the necessary notes or conditions of the existence of 
 things, and is one with their effective cause. It is the 
 middle term which completes the syllogism (teaches Aris- 
 totle), exercising the same office as the cause in nature, 
 and therefore shows the particular cases according to 
 their power. The true universal is shown only by the 
 reciprocal interpenetration of those necessary elements 
 and conditions, from which comes organic unity. The 
 method of concomitant variation shows us that the tide 
 is a lunar phenomenon because the changes of the sea 
 respond in equal measure to those of the moon, but does 
 not show the reason of such inductive law, which 
 ceases to be empirical when it becomes a means for 
 the deduction of the resulting necessity of the principle 
 of the attraction of the earth and the moon. History 
 teaches us that the results of activity of the slave are
 
 PHYSIOLOGICAL AND HISTORICAL 117 
 
 poor in relation to the better labor of the freeman. 
 When this generality is formed, it is connected with the 
 notion of the principal motives of work, which are fear 
 and hope. It is evident that the mind, though it hardly 
 completes the thought, sees the necessity in the above 
 phenomenon. One can by means of induction form a 
 conception of the influence of despotism, but only deduc- 
 tion can explain its causes, starting out with the valuation 
 of the love of power and other motives. Allowing the 
 concept of a person or entity which has a sense of itself, 
 consciousness, and freedom in a proper organism, we 
 must infer that it has a natural right to physical and moral 
 life. Proceeding on the same principle, we find as another 
 logical consequence respect for property, because it is 
 the projection of the person or the freedom of man ap- 
 plied to things. 
 
 33. Law is Physiological and Historical. From 
 what has been said, it is clear that science in general, 
 and the juristic, political, and social sciences in partic- 
 ular, are not limited to the illustration of what exists, 
 but should extend to depicting what should exist. 
 Phenomenon is only what is actual ; law expresses what 
 should be, if it is obtained through deduction from 
 a complete universal. Whatever is has its rational 
 and scientific base on what should be ; the real is founded 
 on the ideal and the certain on the true. Change, there- 
 fore, has its origin in an immutable type and history 
 springs from an eternal idea. Vico emphasized this con- 
 ception when he spoke of an ideal eternal history, and 
 of an eternal law that runs through all time, and of a 
 constant perpetual succession of civil affairs. There is 
 in the course of social and national life a final, necessary, 
 ideal principle which is always the same in the definite 
 variety of forms and change of events. This principle 
 is the idea of man or of common human nature, which
 
 118 LAW AND LOGICAL METHODS 
 
 acquires knowledge of its own unity through a gradual 
 development and continual movement, and uses it to 
 conquer multiplicite and discrepant special characteristics. 
 If these fail, human nature would no longer be able to 
 develop and progress, since it would have no restraints 
 to overcome. There is no development, progress, or 
 evolution, where no defect is met or where there is no 
 imperfection to conquer. From this, it is clear that we 
 must lay aside the historico-physiological method and the 
 purely rational and abstract deductive method. The first 
 is repugnant to the conception of a science, which seeks 
 and determines the necessary and universal ; the second 
 is formal and does not include the real. The historico- 
 physiological method finds only the fact, the certain, 
 the authority in law, and is adapted to illustrate the 
 "mens"andnot the"ratiolegis." The abstract deductive 
 method considers only a part of the true in law, and does 
 not go beyond the bounds of pure reason, which is always 
 foreign to the very life of the law and the rich and real 
 variety of the certain. It is based on the simplest 
 elements of human nature, which it considers in the 
 abstract, disregarding all difference of clime, race, nation- 
 ality, heredity, and time, considering them causes of 
 social phenomena as determined and sure as the factors 
 and laws of mathematics. Proceeding under this 
 method, human nature would appear as a complex of 
 properties always equal and quiescent and would be 
 placed outside of history and life which is absurd. 
 Law would no longer be a human idea if determined 
 under either of these methods. Law should be the object 
 of that science which is, Vico says, history and philosophy 
 at the same time. As philosophy, it sees a well-developed 
 series of reasons, and as history it is the perpetual 
 sequence of human acts in conformity with these rea- 
 sons, since a cause produces its own result.
 
 ARYAN AND SEMITIC RACES 119 
 
 CHAPTER III 
 THE INDUCTIVE IDEA OF LAW 
 
 THE STUDY OF THE ETHICO-JURISTIC CONSCIOUSNESS OF 
 VARIOUS PEOPLES. THE CONTRIBUTION OF THE ARYAN AND 
 SEMITIC RACES TO THE HISTORY OF CIVILIZATION. THE IDEA 
 OF LAW AS THE MEASURE OF THE ARYAN RACE. MEASURE BASED 
 ON THE PHYSICAL ORDER, ON POSITIVE LAW, AND REASON. 
 
 34. The A ryan and Semitic Races are the most Important. 
 The inductive process of the philosophy of law should 
 begin with the study of the various ethico-juristic con- 
 sciousness of peoples. Two races are the principal makers 
 of the web of history, the Semitic and the Aryan. China 
 can be called a world apart. Egypt, while neither Sem- 
 itic nor Aryan, plays a considerable part in the life of the 
 human race, Babylon is not purely Semitic, the Tartar 
 races act as natural forces of a destructive nature, but 
 the value of the contribution of these nations to the prog- 
 ress of civilization is not comparable with that of the 
 above two races. There is nothing of such grandeur, 
 writes Renan, to be found in their history that it can be 
 compared to the invention of writing, to the mission of 
 Moses, to the conquests of Cyrus and Alexander, and to 
 Greek philosophy. 
 
 35. Difference between the Semitic and Aryan Races. 
 Renan gives a true picture of culminating differences of 
 the two races in his work "De la Part des Peuples Semit- 
 iques dans 1'Histoire de la Civilisation." First of all, 
 the Indo-European peoples have not the eloquence of 
 the Hebrew prophets, the Koran, or Psalms, but they 
 possess epics and tragedies that the Semites lack. Their 
 genius is not essentially philosophical, because it only
 
 120 INDUCTIVE IDEA OF LAW 
 
 reproduces Greek thought with Arab commentaries. 
 Science is declared useless in the Book of Job and 
 Ecclesiastes. In invention and art, the Phoenicians 
 were the first to teach writing, the elements of industry 
 and manufacture, and to give themselves over to trade, 
 afterwards developed in the Middle Ages by the Arabs 
 and Hebrews. Comparative mythology shows that the 
 Aryan peoples at first professed a worship of natural forces, 
 later transformed by speculative thought into a kind 
 of pantheism. On the other hand, the Semitic religions 
 have an absolute dogmatic and monotheistic character. 
 The Semites have the great religious mission in history: 
 Judaism, Christianity, and Islamism are their creations. 
 The Aryan race (with the exception of India and Persia) 
 received Semitic beliefs, although its ethico-religious 
 sentiment was more delicate and profound than that of 
 the Semites. Semitic morality is high and pure, if it 
 may be judged from the Mosaic laws, the sentences of 
 prophets, and the Old Testament. It is based on the 
 severe, narrow, and egostic mind of the people in which 
 it is born. The Semites lack the great nobility, the ethi- 
 cal sense, and tenderness of affection that confer on 
 Aryan morals their distinct, admirable quality. 
 
 36. The Aryan is a Juridical Race. The Aryan 
 race has always had a true conception of law and 
 political life. The greatest juridical monuments of 
 antiquity, the Indian books, the Roman law, and the 
 Germanic laws belong to this race, which tends to recon- 
 cile the authority of the State with the freedom of the 
 individual. Among Aryan peoples, there has never 
 arisen that all-controlling despotism which blots out man, 
 as in Egypt, Babylon, China, among the Mussulmans 
 and the Tartar tribes or if it has appeared it has not 
 been of long duration. The Semitic Orient is in constant 
 upheaval between the anarchy of the Arab nomads, a
 
 THE ARYAN A JURIDICAL RACE 121 
 
 continuous and bloody despotism, and theocracy. Solo- 
 mon, the wisest of rulers, was as cruel as a sultan; the 
 prophets struggled against the kings in the name and 
 interest of theocracy. Individualism had great weight 
 among the Semites, who did not succeed in making a dur- 
 able State. In fact, the history of the people of Israel is 
 a series of constant revolutions which hindered politi- 
 cal and civil stability. The Semites were inclined to live 
 in small communities and out of their own country, 
 preserving, nevertheless, their original character and 
 a keen consciousness of their own nationality. The 
 Phcenicians (except in a few colonies), the Hebrews and 
 Arabs lived and still live in this way. It has been well 
 said that the Semite has an adopted, accidental, and sec- 
 ondary country, which confers on him rights and benefits, 
 and a country by nature, constant and fundamental, which 
 offers him aid and a refuge among all nations. The Semit- 
 ico-Hebraic faith, Kerbaker adds, harmonizes with 
 their political ideas in opposition to those of the Aryans, 
 who have religions that make man feel all his dependence 
 on external circumstances, and therefore urge him to 
 conform his conduct to a conception of natural necessity. 
 In nature there are inequalities against which it is vain 
 to struggle. The Hebrews, on the other hand, have three 
 conceptions, one of a personal and omnipotent God 
 who gives the laws according to His will, another of 
 a social law realizing the kingdom of God on earth, and 
 the third of human cosmopolitanism (notwithstanding 
 that the Hebraic hegemony was dominant). These three 
 conceptions contain the belief in the abstract freedom of 
 man, dependent only upon a divine, inexorable will and 
 not on the intrinsic necessity of entities, and a belief in the 
 abstract equality and concord of nations. In general, the 
 political life of the Semites did not develop beyond 
 patriarchal form; it is simple and not complicated, differ-
 
 122 INDUCTIVE IDEA OF LAW 
 
 ing largely, therefore, from the Aryan political life, which 
 from the very beginning proceeded with its famous 
 government composed of a king, a senate, and a general 
 assembly through discussion. It cannot be doubted, 
 says Bagehot in "Physics and Politics," that the passage 
 from slavery and immobility to a free state is due to the 
 regime that is based upon the discussion of principles and 
 the questions of common interest, because discussion 
 makes the mind acute, increases originality of debate, 
 and presupposes tolerance. But Bagehot, however, 
 admonishes us not to believe absolutely in the political 
 primacy of our race, since there are in the Orient the 
 Bengalese of Aryan race who are the most servile 
 people in the world, and among the Semites the citizens 
 of Tyre and Carthage, who were capable of enjoying 
 freedom. 
 
 37. The Aryan Language shows the Juristic Ten- 
 dency. From an examination of the various ethico-ju- 
 ristic manifestations of the consciousness of nations, we 
 find that law has always been conceived as a principle of 
 direction towards a moral object, and a rule, measure, 
 harmony, or proportion. In the Aryan mind, this notion 
 is very well marked and forms the main base of civil 
 life. Philology, since Vice's time, has had the same rela- 
 tion in respect to philosophy that paleontology has 
 towards biology, and language containing a spontaneous 
 knowledge shows the truth of this. It teaches first 
 that the full development of philosophy, of poetry, and 
 of the State among the Aryan peoples is intimately con- 
 nected with the fact of the independence of the verb 
 from the inflective endings for the nouns in the languages 
 spoken by those peoples. We may note that the verb is 
 the most abstract part of speech and therefore indicates 
 the power of universalization, a power necessary to phil- 
 osophy, poetry, and the State. The Greek word
 
 VEDIC LAW IS HARMONY 123 
 
 the Italian "diritto," the French "droit," the German 
 "recht," the English "right," the Slavic "pravo," all 
 express the principle of direction, or measure. Ac- 
 cording to the modern philologists the Latin "jus" conies 
 from the Sanscrit root "ju," which means to bind; 
 whence "jus" is what binds or harmonizes. Thus are 
 explained the other words in which the same root is seen 
 as "jungere," "jugum," "conjugium," etc. The word 
 siKcuov has for its root "dik," common to both Greek and 
 Latin, and means to indicate, to point out, to direct. 
 In Latin, the same root is found in the words "dicere," 
 "digitus," "indicare," and in combination with "jus" 
 forms "judicare," to show the right. 
 
 38. Vedic Law is Harmony. From the Vedic 
 hymns, it is seen that the Indian Aryan distin- 
 guished three worlds and three families of God, that 
 which remained in the celestial grade, the second of 
 the immovable earth and its depths, and the third that 
 lay in the world of air, in which plants and animals 
 live, and men work. In the Brahmans, in the Sutra, 
 wherever philosophical meditations are enjoyed, the 
 Vedic trinity of worlds does not disappear but changes, 
 as Merlo in "Armonie nelleAntiche Dottrine Antropolo- 
 giche e Morali dell' India e della Grecia" explains, 
 into three abstractions, into the "tamas," or torpid 
 obscurity, the "ragias," or headlong motion, and into 
 the "settva," complete and quiet happiness. These are 
 the three primal qualities to which the earth, the 
 air, and the heavens correspond. In man, there is a 
 triplicity of sense, will, and intellect, and a celestial part 
 obscured by the vapors from the earthy part. The 
 triplicity is observed also in the Civil State, in its division 
 into three castes, because, in ancient India the fourth class 
 of Shubra represents what is elsewhere the slave class, 
 and is the link between man and brute. The Sudri
 
 124 INDUCTIVE IDEA OF LAW 
 
 have but one virtue, to serve with absolute devotion 
 the three other castes. In the Brahmans meditation pre- 
 vailed, in the Kshatriya, bravery, and in the Vaishya, tem- 
 perance. It is enjoined upon everyone to keep his proper 
 place in the caste without a desire to change it. In conse- 
 quence the Aryan Indian cannot fail to consider justice 
 as a harmony of all these elements and castes. The sim- 
 ilarity between the Indian and Greek conception of jus- 
 tice is remarkable. According to the latter, justice is 
 always harmony. Plato defined it as the accord of the 
 three powers of reason, courage, and sense, of the three 
 virtues, wisdom, bravery, and moderation, and of three 
 classes of philosophers, warriors, and artisans. 
 
 39. The Mute Age. Ancestor Worship. The Ary- 
 an conception of law as measure or accord passes 
 through various phases, because man is sense, imagina- 
 tion, and reason, and because his history must pass 
 through the mute, heroic, and human stages. Vico out- 
 lined at great length the characteristics of such ages, 
 and his words are confirmed by the analyses of modern 
 science. In the mute age, human nature was proud, 
 haughty, entirely dominated by sense and the superior 
 world, whose forces' it called divine. It was overcome by 
 fear and fright before those gods that it itself imagined. 
 Law in such an age was essentially divine, hidden in ora- 
 cles or commands of the gods, who dominated all, man and 
 things. The oracle was the principle, or the measure of 
 conduct, and jurisprudence a divine wisdom, a science 
 of divine words or of the comprehension of the mysteries 
 of divination, a science of auspices. There was a divine 
 mental language for mute religious acts and divine cere- 
 monies, in which lay the just. The first customs are 
 redolent with religion and piety. The governments were 
 of a theocratic character, because men believed that the 
 gods commanded everything. Justice lay in repay-
 
 MODERN RESEARCHES 125 
 
 ing the gods for sudden crimes. It is "implorare 
 deorum fidem," which means "deos obtestari." After 
 such beseechings, that is, after the accusations and 
 defenses (which form the first orations in the world), one 
 comes to the act of execrating the culprit, of consecrat- 
 ing him to the Furies, and finally of killing him. 
 
 40. Modern Researches in Ancient Law. The most 
 profound studies of the moderns on the laws of India 
 do not reach conclusions really different from the 
 ideas of Vico. It is even proved by Max Miiller, and 
 by Sumner Maine in his "Dissertations on Early Law 
 and Custom," that, according to the juristico-hierarch- 
 ical schools of India (a kind of spiritual family), science 
 is found in the sacred and inspired literature from 
 Vishnu and Vasishtha to Apastamba and Gautama, and 
 from these to Manu, and from Manu to Nerada, and 
 contained therein is what man should know and what 
 he should do. Law enters as a second term in the division. 
 The juristic books are principally treatises on religious 
 observances and sacerdotal duties, in which the princi- 
 ples of conduct imposed upon the Indian of the three 
 higher classes are found to live as a student of the sacred 
 works taught by Brahmans in his youth, as head of a fam- 
 ily in his mature years, and as an ascetic and hermit in 
 his old age. In these precepts stands the law entirely 
 based on religious beliefs and especially on those 
 regarding the destiny of man after death; that is, the 
 heavenly rewards and infernal punishments, the trans- 
 migration of souls and ancestor-worship. The principle 
 developed in these books is that the destiny of man after 
 death is the consequence of his acts. It depends on the 
 man whether he becomes in the future life a plant, 
 a reptile, a Brahman, or a demigod. The reward belongs 
 to the other life; in this life lies the penance. But if 
 the penance is not fulfilled, the king, aided by his
 
 126 INDUCTIVE IDEA OF LAW 
 
 priestly councilors, will threaten bodily punishment. 
 The ritual of ancestor-worship, so closely connected with 
 the right of inheritance, is found in all these juristic 
 books. In our day this cult is explained in a psychological 
 manner through the phenomenon of sleep and the 
 primitive imagination. For a long time, writes Lubbock, 
 in "The Origin of Civilization and the Primitive Condi- 
 tion of Man," man did not understand death, and con- 
 fused it with sleep. The savage knew that during sleep 
 the spirit lived although the body seemed dead, and it 
 was natural that he should try to arouse the dead and 
 placed food near the corpses. The prayers addressed to 
 those who are no more, represent a logical deduction from 
 such a conception, since the dead living in another world 
 can exercise a considerable power over human affairs. 
 Spencer in his "Principles of Sociology," in conformity 
 with the above theory, classified the different societies 
 according to their belief in spirits. The principle of the 
 psychological theory did not escape the mind of Vico. 
 He taught that posterity, who bury the dead of their 
 ancestors according to the order of their mortality, 
 were persuaded that the soul was not the body but an 
 image of it, its simulacrum and shadow. This belief begins 
 and is developed when posterity deify the ancestors of the 
 race. It is not necessary to insist upon the agreement of 
 recent studies with Vice's thought about ceremony. 
 Spencer has gone so far on this subject as to hold that 
 the customs expressing obedience to an invisible or 
 visible sovereign precede the religious and civil 
 obligations prescribed by it. Before the law ap- 
 pears, there are religious duties. There must be, he 
 says, subordination to a power which establishes this 
 and imposes that and therefore the rule of the 
 ceremonial is primitive and precedes religious and civil 
 government.
 
 THE HEROIC AGE 127 
 
 41. The Heroic Age. In the heroic age, man no 
 longer feels himself a slave of his senses and the ex- 
 ternal world, but begins to have knowledge of him- 
 self and his position, although imagination prevails. 
 Man really, writes Vico, is only body, breath, and mind. 
 The breath or imagination is placed in the midst of 
 the body and the mind. The spirit or imagination is 
 nurtured by phantastic generations, by poetical univer- 
 sals, by formulas of words, as the mind has within itself 
 intelligible universals. Heroic nature is believed by these 
 heroes to be of divine origin and themselves to be children 
 of Jupiter. Being born under his auspices, they boast of 
 their natural nobility over those who, for safety from the 
 ruin produced by infamous bestial communion, sought 
 their asylum; whom, destitute and godless, they held as 
 beasts. All the civil advantages, therefore, are contained 
 within the reigning order of heroes, and to the plebeians, 
 thought to be of bestial origin, is given only the use of 
 life and natural fruition. The heroes had choleric and 
 caviling customs, that is, a strong sense of personality, 
 which they made good by force. Their law is that of 
 Achilles ; the measure, in that age, is reason estimated by 
 fortune ; it is force not bestial but purified by religion and 
 animated by imagination. The rulers are the nobles, that 
 is, the strongest, who work always to keep control and to 
 hold their boundaries to prevent the communion of the 
 outlaws. Wisdom is contained in solemn formulas and 
 jurisprudence is bounded with certain words of its own, 
 like the wisdom of Ulysses. In the heroes lay all the au- 
 thority that formerly was part of faith and now is part 
 or form of the solemn formulas of the laws and action in 
 respect to judgments. 
 
 42. The Human Age. The human age succeeded 
 the heroic, when our nature became modest, benign, 
 and reasonable, and custom became developed reason.
 
 128 INDUCTIVE IDEA OF LAW 
 
 Jurisprudence was founded on natural equity, of which 
 the free, generous, and magnanimous masses were 
 capable, and it looked to the truth of facts and ful- 
 filled benignly the reasons of the laws as demanded 
 by justice. The truth of facts, good faith (the 
 product of humanity), customs suitable to free re- 
 publics and generous monarchies prevailed in the 
 judgments. All are equal before the law in human 
 governments because of the equality of intelligent 
 nature. Authority is no longer the same as mysterious 
 and secret counsel, chance, or hereditary nobility, but 
 is one with reason: "Auctoritas ex ratione." 
 
 43. The Family was the first Unit of the Law. Ad- 
 mitting the laws of the three ages, it can be seen that 
 in the first the moral and juristic order was confused 
 with the physical. Measure and harmony are found in 
 nature and therefore ignorance and fatality cannot fail to 
 enter into formation of the ethical concept. The act 
 of man through this confusion is valued without consider- 
 ation of the intention, and the fault becomes original and 
 hereditary. Ate, the Homeric Nemesis, pursues whoso- 
 ever wilfully or unconsciously disturbs the harmony of 
 nature. The disturbance in every case demands expia- 
 tion and the penalty falls upon the author and his 
 descendants, because the basis of primitive law was the 
 family community and not the individual. The confusion 
 disappeared in Greece, the land of art, through the lyrics 
 and tragedies, as Florentinus points out in "Ideale del 
 Mondo Greco." Theognis demands that Jove punish 
 the descendants, and Bias ironically likens the gods to 
 doctors who give medicine to the children of the sick. 
 ^Eschylus shows in "Prometheus," the stealer of fire who 
 was bound to a rock for the eagles, the first act of personal 
 punishment, but Prometheus is a demigod and not a 
 true man. In the "Orestiad" there is the idea that a guilty
 
 THE SEVEN SAGES 129 
 
 man can redeem himself. Orestes is acquitted by a tie 
 vote in the celestial Areopagus on the defense of the two 
 young divinities, Apollo and Minerva, who, pleading in 
 favor of a new law, are accused of offending the 
 ancient laws which confuse the two orders of 
 heredity and fault. The new law is based on in- 
 tention and on ethics. Orestes, however, does not 
 take part in the judgment and knows nothing of 
 the contest on Olympus about his fate. Sophocles 
 alone, in CEdipus, represents a man guilty without 
 knowing it of parricide and incest, who is not punished 
 because of the lack of guilty intent. 
 
 44. The Seven Sages and the Early Sophists. In the 
 human age, the measure, of which the Aryans made 
 law consist, was no longer identified with the physical 
 order, but rather with civil and positive law. The 
 axioms of the Seven Sages, the first philosophical reflec- 
 tions, regard practical life and rules of social conduct, 
 because in the Greek period the source of ethical notions 
 and speculative activity itself was found in civil reality. 
 The Seven Sages were not philosophers, but men of great 
 experience living at the time of the struggle of the 
 "demos" against the oligarchs. All their axioms make 
 for clearing and reinforcing the Hellenic concept, that 
 the State should realize harmony. Solon, for example, 
 teaches that injustice disturbs this harmony. Bias 
 teaches that obedience to the law is the principle of 
 agreement. Anacharsis says that the harmony of the 
 whole exists where the members are equal, and where 
 virtue occupies the higher position and vice the lower. 
 Archelaos tries to show that animals and men arose 
 from the dust, and that the laws have their origin within 
 the State after the separation of men from beasts. 
 He adds, agreeing with the Ionic school, that the just 
 is the measure of harmony in the State and is not
 
 130 INDUCTIVE IDEA OF LAW 
 
 decreed by nature, but by the laws of the city. The 
 Sophists, says Chiappelli, in his book "Sulle Teorie 
 Sociali dei Sofisti Greci," found themselves confronted 
 with the idea of nature as portrayed by precedent thought, 
 and were forced from the first to consider it as the basis 
 of moral life. Hippias did not recognize the identifi- 
 cation of the just with the legal, but believed that the 
 laws were the variable and contradictory effect of agree- 
 ments between men, and that the just, which could be 
 found in the contrast of the principal branches of the legis- 
 lation of different peoples, lay in the unwritten law of 
 nature and in divine action. As the first movement of 
 Sophism shows the applications of physical concepts to 
 ethics, so the second shows the separation of moral 
 thought from nature. Pythagoras observed that nature 
 has neither constancy nor universality, but continu- 
 ously changes, and man only knows it to the extent that 
 sensation, which is variable, gives witness to it. What is 
 honest and just is such because it is so held by the 
 city, that is, by positive law. As things honest and 
 just are true of every city, so they are made such by 
 cities. The principle of Hippias that nature and not law 
 is the principle of life served Callicles in his state- 
 ment that the just is the will of the stronger, because 
 the condition of nature is not equality but prevalence 
 of strength. And so in nature, says Callicles, whoever 
 has the strength is right. If the just lies in the law and 
 State, as Pythagoras teaches, and the laws and the State 
 are the product of force and caprice, Thrasimachus is 
 not illogical in concluding that justice should be placed 
 in prevalence of the strong over the weak, and that law 
 is reducible to the interest of the strong. Thus, by 
 two opposite ways, Sophism comes to the recognition 
 of the individual subject, more sensate than intelligent, 
 as the measure of everything.
 
 SOCRATIC PHILOSOPHY 131 
 
 45. Socratic Philosophy and Aristotle. At last, 
 the measure was not sought in the positive law but 
 in a rational principle. Pythagoras had already taught 
 that justice is harmony, quadrate and apart, always 
 the same, counter-exchangeable; and that harmony 
 is the state of the cosmos. The consequence of this, 
 not shown by him, is that the just cannot originally 
 lie in the laws of the State. Socratic truth and measure 
 are not sought in nature and out of the sphere of knowl- 
 edge, but in knowledge and the concepts. The prin- 
 ciple of Socratic ethics is the identification of virtue with 
 knowledge and of evil with ignorance. Whoever knows 
 the good cannot fail to pursue it ; whoever does the evil 
 is ignorant of the good. In this knowledge is found 
 happiness, just as virtue is allied with knowledge. On 
 this side, Socrates agrees with Ionic philosophy and 
 Pythagoras. On the other hand, he approaches the doc- 
 trines of Hippias in admitting unwritten laws given by 
 the gods as the basis of the written laws. This distinc- 
 tion of laws made by Socrates should, however, always 
 be placed in relation to his principle of knowledge. 
 Plato thinks justice is a higher idea than law, consisting 
 as it does in wisdom, and in the harmony of the three pow- 
 ers, virtues, and classes. Aristotle, following Plato, rises to 
 the notion of justice independent of the orders of the 
 State. In the mind of the Stagirite the just is the 
 mean between the two extremes of the illegal or unequal 
 and the strict law. "Summum jus, summa injuria." 
 Commutative justice follows an arithmetical propor- 
 tion, and is the mean between giving and having, be- 
 tween advantage and loss. Distributive justice looks to 
 merit as its object and follows geometrical proportion. 
 The Stoics admit a law that is the divine and vital 
 manifestation of the reason of nature. " Jus vero, 
 Stoici dicunt, esse natura," say Stobseus and Cicero.
 
 132 INDUCTIVE IDEA OF LAW 
 
 " Lex communis quse est recta ratio in omnes diffusa," 
 is a sentence from Zeno. Chrysippus, in the beautiful 
 fragment translated by Martial, teaches, " Lex est 
 omnium divinarum et humanarum rerum regina. 
 Oportet autem earn esse praesidem et bonorum et 
 malorum, et principem et ducem esse." 
 
 46. Roman Philosophy. Among the Romans the 
 same phases of the idea of law were reproduced, but 
 with differences growing out of the different national 
 'characters. In Greece, the human mind developed, 
 and for the first time asserted its independence of 
 nature through art and philosophy. By art, man 
 reproduces and recreates nature, expressing his ideas 
 in the most adequate and sensible forms. The free- 
 dom of the mind, as thought tending toward dis- 
 tinction, is shown even better in the rapid, although 
 always gradating conversion from the mute to the 
 articulate that was observable in Greece. Distinction 
 is the basis of personality while imagination, the power 
 of art, is always wavering and confused. It is uncertain 
 and forced. This conversion took place through phil- 
 osophy, and has its exemplified formula in the "Know 
 thyself " of Socrates. But the Logos in Greece came to 
 be recognized as different from imaginative thought, 
 but not separate from it, and did not develop outside the 
 realm of art, the special prerogative of the Hellenic 
 people. If Greece is the world of philosophy and art, 
 Rome represents the world of the will and therefore of 
 law, politics, and war. The concept of measure was 
 clothed in Greece in all the charming forms of beauty, 
 in the common thought and meditations of the philoso- 
 phers; in Rome it became the basis of the juristic 
 intellectual, and political sciences and military wisdom. 
 In the Roman world, will on one hand was born in the high 
 organisms of the State, and on the other began to develop
 
 ROMAN PHILOSOPHY 133 
 
 as individual law. With the principle of will and its sub- 
 jective nature, private law could not fail to arise and 
 develop, as we have said above. 1 According to Vico, law 
 is at first strict, iron-bound, and rigid, then it is amplified 
 and grows supple and elastic, moderated by equity. It 
 is not gotten from the Twelve Tables or the Edicts, but 
 rather from human nature itself, as Cicero, the follower 
 of the Academico-Stoical philosophy, said, " Lex est 
 ratio summa insita in natura" ; that "Recta ratio est 
 naturae congruens, et natura fons est legum et juris, stirps 
 juris, tota causa universi juris. Natura quidem jus est 
 quod non opinio genuit sed qusedam innata vis inseruit." 
 In the minds of the ancient jurisconsults, the followers 
 of the Stoic law, it is the effect of the " naturalis ratio 
 quasi lex quaedam tacita," and consists in the "equum 
 bonum " in the "id quod semper bonum et sequum est," 
 in the " ars boni et sequi," and in a proportion of the 
 utilities. There is, according to the Stoics, a "ratio" 
 that has in itself a basis of the common natural knowl- 
 edge. This natural knowledge contains, in the minds of 
 the jurisconsults, the knowledge of the " equum bonum." 
 At the end of the Republic the doctrines of Epicurus 
 flourished, who thought " Justum natura est utilitatis 
 pactum,"and those of Lucretius who said, " Magistratus 
 partim docuere creari juraque constituere ut vellent 
 legibus uti . . . Genus humanum defessum . . . sponte sua 
 cecidit sub leges arctaque jura." Almost at the same 
 time appeared the authors of the empirical theory with 
 Esidemus and the Sceptics, all enemies of the natural 
 law. Sextus Empiricus reiterates that law is the mutable 
 and variable product of human license. The sensualistic 
 doctrines were enthusiastically received by the Latin poets 
 and writers, if not by the jurisconsults whose various 
 schools resist more or less the influence of the Stoics and 
 
 l Cf. Intro, p. 5.
 
 134 INDUCTIVE IDEA OF LAW 
 
 agree in proclaiming the existence of a natural law 
 founded on the "naturalis ratio": "Omnibus ratio jus 
 igitur datum est omnibus," said Cicero. 
 
 47. Later Philosophy. In the modern and truly 
 human epoch, the principle of the proportion or 
 measure is developed wholly in the light and evi- 
 dence of reason. Ever since the Middle Ages the 
 beginning of this development was apparent in the 
 works of Thomas Aquinas and Dante. Aquinas dis- 
 tinguished three kinds of law, " lex seterna," that is 
 in God, "lex humana" or positive law, and "lex natura- 
 lis," which lies between one and the other, in that it is a 
 part of the first and the model or type of the second. 
 For him justice is proportion; "justicia a justare." 
 Dante defines law explicitly as, "Personalis et realis 
 proportio hominis ad hominem quse servata servat cor- 
 rupta corrumpit societatem." At the time of the Renais- 
 sance, Bruno conceived of an ethical doctrine resplendent 
 with the divine light of truth, which is the very substance 
 of moral action attainable by a temporal discourse that is 
 prudence. Law, says Bruno, should conform to reason 
 and result in the useful. Reason is the measure, the 
 directive principle of law. But the above development 
 was fully realized by the father of natural law. Grotius 
 conceived, with absolute clearness, of a natural juris- 
 prudence, founded on reason and the source of all other 
 jurisprudence. According to him natural law is the sum 
 of the principles of right reason and could exist on the 
 hypothesis of the non-existence of God. And thus the 
 measure of goods or proportion of utilities, the constant 
 object of the deductive definition of law, becomes human 
 enough to separate from the original ties which bound it 
 to God and tries to stand by itself.
 
 BACON'S MATERIALISM 135 
 
 CHAPTER IV 
 
 THE THEORETICAL PRESUPPOSITIONS OF 
 THE DEDUCTIVE IDEA OF LAW 
 
 THE PRINCIPLE OF PERSONALITY. THE ORGANIC AND SPIRIT- 
 UAL ELEMENTS OF THE PERSON AND THEIR CORRESPONDENCE. 
 THE UNFOLDING OF MATERIALISM. THE THEORY OF EVOLU- 
 TION. THE CRITICISM OF MECHANICAL EVOLUTION. 
 
 48. Man as an Organic Spiritual Subject. The 
 concept of law as the measure or proportion of benefits 
 from inductive becomes deductive when based on the 
 principle of personality. Man is a person, that is, an 
 organic and spiritual subject capable of wisely attaining 
 his own ends by the election of means, and of subjecting 
 the world to his will. A person, as man, presupposes the 
 organism and spirit. We must now go back to the first 
 elements and even to the original activity from which 
 the person is derived. This subject cannot be briefly 
 treated, and we must go into what properly belong to 
 philosophy in general. 
 
 49. Bacon's Materialism. The correspondence often 
 shown between the organism and the spirit is used 
 as an argument in favor of the materiality of the 
 latter by those who agree with Bacon that the cause 
 is what comes first; and the sequent fact by alter- 
 ation, change, and suppression implies development. 
 Since the spirit is a fact, it follows when the body is 
 given, and develops and changes with it and fails when 
 there is no body. We can conclude (under the Baconian 
 method) that the spirit has the same nature as the organ- 
 ism, not being another kind of substance beyond the
 
 136 DEDUCTIVE IDEA OF LAW 
 
 material, and that it can through the perception of the 
 senses know the methods of the generation, combination, 
 and action of beings. 
 
 50. Bacon's Materialism is the Result of Illegitimate 
 Deduction. The mistake of those who reason thus does 
 not lie in their continuous appeal to experience, but in 
 exceeding its data in their conclusions, because strict 
 reason cannot infer from the before mentioned corres- 
 pondence that the organs are not subject to psychical 
 phenomena, but are only conditions essential for the 
 appearance and explication of the life of the spirit. 
 In such a case, they would not go beyond on the 
 sphere of experience, and spiritualism would be safe. 
 It, however, suffers at the hands of the modern be- 
 lievers in the persistence and transformation of 
 force; because from motion to heat there is only a 
 movement of molecules, and there is not that hetero- 
 geneity of change that lies between vibration and sensa- 
 tion. Now, until the series of medial termini is shown 
 through which one can see the change from molecular 
 motion to sense, it will always be right to consider 
 motion as a condition and not the cause of sensibility, to 
 keep the two things distinct. Vibration, it is said, is in 
 respect to sensation what the grain is in respect to powder. 
 The grain is the condition of the explosion, but its cause 
 lies in the chemical virtue of the powder. In sensation, 
 conceived as a complex phenomenon, we must distinguish 
 three processes, the physical, psycho-physical, and psychi- 
 cal. The physical process regards the action of external 
 force, that is, of the stimuli ; the psycho-physical has refer- 
 ence to the structure and functions of the organ ; the psychi- 
 cal is connected with the simple and indefinable internal 
 state of the spirit, that is properly called sensation. Mod- 
 ern physicists and physiologists of great reputation agree 
 that the second process is not the reproduction of the first,
 
 PSYCHOLOGICAL MATERIALISM 137 
 
 as the third is not the copy of the second. Sensation is 
 not the copy of external objects, but is only their symbol 
 and sign. Helmholtz says that the knowledge furnished 
 us by sensation about the qualities of external objects is 
 no truer than that which words give to a blind man 
 about color. This means that the stimulus is more 
 occasion than cause. The materialists admit that 
 psychic phenomenon is not a fact, distinct in substance 
 from physiological fact, but claim it constitutes its sub- 
 jective aspect, holding, therefore, that the two facts are 
 not identical, nor their relation formulated by an equa- 
 tion, because if that were possible the distinction between 
 the internal and the external, between the subjective and 
 the objective, would disappear. Subjective manifesta- 
 tion here is a new fact. It is a conscious, new and more 
 perfect reality. 
 
 51. Psychological and Physical Materialism. Ma- 
 terialists, since Kant's time, believe that things are 
 not knowable of themselves, although they are certain 
 that every physical or psychical phenomenon belongs 
 to the same order, that is, to motion. But whoever 
 believes in motion must believe in a substratum of 
 matter. And as it is not shown that psychical phe- 
 nomenon consists of anything save motion, it is 
 contradictory to state that the base common to both 
 phenomena is not knowable, since this raises the purely 
 physical phenomenon to the grade of the other. Neither 
 is it just to consider with the simple perception of sense 
 the method where one cause, interpenetrating with 
 other forces, produces a phenomenon, because such a 
 notion is reached only by way of the concepts. These 
 contain the essence of things and make clear the manner 
 in which the various elements mingle and act in order 
 to effect the result. In studying the reactions between 
 the body and spirit we do not meet any greater difficulty
 
 138 DEDUCTIVE IDEA OF LAW 
 
 than is found in the physical studies themselves. Sup- 
 pose, says Lotze, that we wish to have complete knowl- 
 edge of a mechanism, we begin by taking apart its most 
 minute parts and then by looking at their coordinance 
 and transmission of motion. But to what do the Co- 
 ordinance and the transmission regarded by themselves 
 tend? In what does the coordinance consist? If it is in 
 the forces of attraction, how are such forces put in play? 
 How do they excite a certain action in the bodies? 
 What is the impulse and how does it originate? What is 
 transmission of motion and how does one body by moving 
 communicate the same motion to another? To all 
 these questions we cannot reply; and so we must admit 
 frankly that man is ignorant of these things, and not 
 imagine illusory solutions. Lotze calls this prudent 
 manner of conduct in researches about physico-psychi- 
 cal mechanisms the theory of occasion. Proceeding 
 under this theory, there is no sudden impediment, be- 
 cause physiological psychology can appropriate to itself 
 the results of the excellent studies in psychological 
 physiology which show constantly new relations and 
 proportions between the explication of the organs and 
 the psychical activities. Finally . we must reflect that 
 matter is not the object of sensible perception but is 
 (as Stuart Mill defines it) the permanent possibility 
 of sensation. Is not the possible in itself ideal? Here 
 materialism is converted into idealism, and Mill agrees 
 with Berkeley. In truth, the conception of matter is 
 not the model proof of objectivity that it is said to 
 be, arising, as it does, from a long and difficult mental 
 elaboration, which includes external causes as they 
 appear to it and not as they are in themselves. Extrin- 
 sic agents exist for us as they are felt and thought. 
 Wherefore, materialism does not derive what is subject- 
 ive from what is objective, for example, sensation from
 
 SPENCER'S UNKNOWABLE 139 
 
 the stimuli, but receives sensation from sensation, 
 thought from thought, and does not escape from the 
 idem from idem (as Spaventa observes in his book on 
 " Kant e L'Empirismo"). 
 
 52. Spencer's Unknowable. With this much on the 
 factors of the correspondence between the body and 
 spirit as a premise, we must see in what form such an 
 harmonic life is realized and manifested. Many are 
 inclined to believe that the law of evolution, impera- 
 tive in the physical world, in which the entities form 
 an uninterrupted progressive series, governs also in this 
 life. Spencer is regarded by all as the philosopher of 
 evolution. His theory, as gathered from his " First 
 Principles " and " Principles of Psychology," can be 
 briefly sketched: Philosophy unifies knowledge, but 
 the unification cannot be perfect because there will 
 always remain something absolutely unknowable. The 
 external and internal world constitute two orders of 
 change, whose principles we cannot know. What can 
 be known of external change depends upon the elemen- 
 tary conditions of knowledge. The ideas about the 
 relations between the states of knowledge are not the 
 real similarities or differences of things, and therefore 
 cannot be called real from this aspect. But they are real 
 from another point of view since they continue in the 
 consciousness which cannot change or destroy them. 
 Something, therefore, that is conditionally or absolutely 
 determined, should correspond to them. There must be 
 an underlying force in all changes. The conception of 
 the persistence of force contains that of the indestructi- 
 bility of matter and of the continuity of motion. Every 
 new manifestation of force is the equivalent of another that 
 disappears ; the quantity of matter and of motion remains 
 unaltered throughout the changes. The concentration 
 of matter implies the dissipation of motion and the
 
 140 DEDUCTIVE IDEA OF LAW 
 
 absorption of motion produces the diffusion of matter. 
 In other words, the parts go closer in losing motion, and 
 separate in acquiring it. In concentration, matter 
 integrates; in diffusion, it dissolves. In all distribution 
 of matter and motion there is a process of continuous in- 
 tegration and dissolution. If there is evolution, it is a 
 passage from what is indistinct to what is distinct, 
 from the homogeneous to the heterogeneous. Evolution is 
 inorganic, organic and super-organic. The evolution of life 
 is a never-ending adaptation of internal to external rela- 
 tions, of the living being to the place and surroundings ; 
 an adaption which is at first direct and homogeneous and 
 afterwards indirect and heterogeneous. Homogeneous 
 adaption takes place through a simple external means 
 not very dissimilar in essence and force from the con- 
 scious acts of living beings; heterogeneous adaption is 
 shown in changeable, complicated, and diverse circum- 
 stances. Evolution connotes an increase of attributes, 
 functions, and organs. It is increasing multiplicity and 
 at the same time is the cause of a greater coordina- 
 tion and agreement of parts. Psychical life is a process 
 of continual differentiation and integration and, in re- 
 lation to circumstances, is adaption through associa- 
 tion. It is a process of continual differentiation and 
 integration, because in all phenomena of thought, there 
 should be a unity of composition ; in a word the form and 
 process of knowledge should remain the same. Now a 
 form of knowledge is not evolved except through a 
 change of state. Whatever change takes place is noted 
 only in relation to the anterior similar or dissimilar 
 changes. As long as this relation does not become clear 
 through a sufficient repetition of similar or diverse 
 change, the knowledge of it is obscure. It is an adapta- 
 tion through association, in that the intellect should 
 rule the series of its internal modification in order to
 
 COSMIC EVOLUTION 141 
 
 harmonize with external series, with co-existence, and 
 with the sequences of things. 
 
 53. The Doctrine of Cosmic Evolution. Starting out 
 with the ideas of Spencer, the doctrines of cosmic evo- 
 lution, as understood by the greater number of recent 
 interpreters and as illustrated by Anguilli in "La 
 Filosofia e la Scuola," can be briefly outlined. The 
 doctrine includes the questions of being and growth 
 and is of universal application. Everything is derived 
 from matter and, force, which is motion, as is matter 
 itself. Evolution is always the passage from the homo- 
 geneous to the heterogeneous, from the indistinct to the 
 distinct, with a progressive specification of parts, organs, 
 and functions, and with an increasing agreement between 
 them. It is accomplished by epigenesis, that is, the new 
 parts do not unite with the old, as new formations, but 
 develop from them as transformations. From the con- 
 junction of the simple elements arise phenomena with 
 properties not contained in the elements. From a higher 
 aggregation of albuminoid substances, which combine 
 variously with some minerals, is derived the protoplasm, 
 a ductile transparent substance rather unstable and rich 
 in active properties. It is easily affected by the action 
 of its surroundings and reacts energetically against them. 
 This faculty of reaction is irritability, which shapes 
 into sensibility, a habit of reaction with greater facility 
 and promptness, and is connected with motion. Irrita- 
 bility and mobility are inseparable in life from nutrition 
 and procreation. The protoplasm, besides the power of 
 reaction, has another power in the faculty of preserving 
 as a molecular disposition the effects of the sudden 
 changes that it has undergone. ' In other words, it has 
 memory or the reproductive functions. Sensibility, 
 mobility, and memory are found in every phenomenon 
 of life and constitute the primitive elements of mental
 
 142 DEDUCTIVE IDEA OF LAW 
 
 phenomena. Thus, the question of the origin of mind is 
 the same as the origin of life. The idea of life is dis- 
 tinguished from the idea of organization because life is a 
 product of the aggregation of matter and organization is 
 a product of the development of life. Before the most 
 simple form of organization, there existed a mass of 
 slimy, amorphous substance, without apparent division, 
 monera, bathybius, etc.; the monera contained all the 
 essential activities of life. From the unformed monera 
 come the individualized monera with signs of organiza- 
 tion, then comes the cellule, the first morphological 
 organic union. The morphological evolution of the 
 cellule is epitomized by every higher organism which 
 remakes in its course the stages covered by the or- 
 ganism that preceded it in the scale of life. The 
 embryonic process has its rationale in the evolution of the 
 species to which it is referable and of which it outlines 
 the aspects and processes. 
 
 54. Environment and Heredity. Gradual and pro- 
 gressive transformation, adds Anguilli, is completed by 
 environment and heredity; environment corresponds to 
 nutrition, heredity to reproduction. Nutrition is the 
 increase of the living substance where, through favorable 
 aggroupment of means in its external surroundings, it 
 can gather in the evolutionary state more than it loses. 
 Advantageous variation depends upon the abundance 
 of nutritious means and not upon disadvantageous 
 circumstances. Before a struggle with its rivals, an 
 organized entity should gain its position against exte- 
 rior agents. It should acquire the property which 
 renders it fit to survive. From the processes of repro- 
 duction and the circumstances of generation come 
 other variations. The generated unities can separate or 
 can remain united to sustain better the attack of external 
 circumstances. The living entity multiplies ; it develops
 
 SPENCER'S EVOLUTION 143 
 
 new complications, and evolution brings about a division 
 of physiological labor. With the law of division of 
 physiological labor, is bound the other of association, 
 which is a means for the preservation or perfection of 
 existence, a potent factor in biological evolution. And 
 here we must note too, that the principle of the struggle 
 for life and that of choice or selection are applicable to 
 the parts of the organism, to the molecules, cellules, 
 tissues, and organs. The properties acquired in such an 
 internal struggle make conditions favorable for the 
 external struggles of the organism. Adaptation becomes 
 higher as beings capable of a larger imagination and of a 
 more provident intellect are found. Progressive and 
 selective variability is, without doubt, greater in the 
 being in whom the mental faculties prevail. The law of 
 association can also be considered in relation to an organ- 
 ism which becomes more complex or in relation to other 
 organisms. The first form of internal association tends 
 to volume (as in the infusoria). Then association is 
 seen in compositive individuals bound together by the 
 internal communication (as in the reptilia), and by 
 progressive transformation in the beings, it develops 
 into the groups of organs in the vertebrate animals, 
 which are marked with a greater nervous and mental 
 centralization. The condition of development of com- 
 plex organisms is the formation of sensibility, and social 
 consciousness, together with a principle of coordination 
 in their movements. 
 
 55. Criticism of Spencer's Evolution. The theory 
 of Spencer is not entirely empirical, as many believe, 
 because the supreme principle of the external and 
 internal world of the two orders of change is unknow- 
 able and transcendental, and is therefore without 
 the confines of experience. It does not come from the 
 mystery which the positivists find in metaphysical doc-
 
 144 DEDUCTIVE IDEA OF LAW 
 
 trine, because this absolute principle is not knowable 
 and the rationale of its manifestation cannot be known. 
 How is it possible to say what a thing is, if it has no 
 relation to knowledge? If a thing is per se unknow- 
 able, it does not exist for the mind. It is nothing. 
 Spencer analyzed the data of experience and came to the 
 ultimate elements, to ideas which resisted analysis, and 
 were irreducible, before which he had to stop. These 
 ultimate elements are space and time (as formal con- 
 ditions), matter, force, and motion. Universal analytical 
 truths are connected with these; the indestructibility of 
 matter, the conservation of energy, the transformation 
 of forces, the continuity of motion and the like. He 
 then with such elements as the basis, reconstructed the 
 cosmos, through the laws of evolution which imply 
 integration and differentiation. The ultimate elements 
 were conceived of by the English philosopher as mani- 
 festations of a principle which does not know itself. 
 Now if this principle is unknowable, it cannot be mani- 
 fested. Only what can be known, can be shown and 
 revealed. It is useless to state that the ultimate 
 elements, matter, force, motion, are knowable if they 
 depend upon an unknowable power. Spencer ad- 
 mits that it is not possible to know reality, except 
 as it appears to us and as it is present in the mind. And 
 yet he raises the unknowable to a principle of itself. 
 Spencer is not consistent, and this is true from another 
 point of view as well, because first he said that things 
 are as they are shown to the mind, and then that the 
 latter in its self-adaption governs the series of modifica- 
 tions in conformity to objective coexistence and the 
 real sequence of things. He did not have an exact con- 
 ception of evolution, which is defined in his book chiefly 
 in a quantitive aspect. The increase of extension in 
 space and time, division and subdivision, the increase in
 
 EVOLUTION NOT MATHEMATICAL 145 
 
 comprehension and complexity are only forms or methods 
 of quantity. Evolution is not only a motion of increase 
 of division and coordination, but is a process of an in- 
 creasing and always more perfect qualification. If 
 this conception is accepted, the number, variety, and 
 intermingling are no longer exclusive factors in the 
 value of things. It is true that Spencer shows that 
 evolution is constant differentiation, but he does not 
 make clear enough what the Germans call the qualitative 
 momentus, in which a constantly higher heterogeneity 
 is not thought to be explicable with simple changes of 
 quantity or combinations of an inferior order; in other 
 words, not measurable by simple physical forces. 
 
 56. Evolution is not Mathematical. Experience and 
 scientific reasoning teach that matter is one, that 
 it has an atomic constitution and is indestructible. 
 They teach, furthermore, that force in its external 
 and mechanical aspect is the movement of matter 
 itself and that, therefore, matter and force are one; 
 that matter and force do not create or destroy one 
 another; that matter must have possessed from the 
 beginning a quantity of motion not subject to increase or 
 diminution. From this, it follows that the conception 
 of the persistence of force is identified with that of the 
 continuity of motion. But they do not teach us that 
 evolution lies in the whole and not the parts, nor do 
 they tell us that there is a direct transformation of every 
 kind of force. Every evolution demands a precedent 
 dissolution or dissipation, and therefore there must be a 
 continual circulation of matter and force. It has been 
 well said by Masci that a rectilinear evolutionary 
 process, that is, the evolution of the whole, would be in 
 contradiction to the principle of the conservation of 
 energy, since it would necessarily include a continual 
 increase of energy. If direct transformation of the
 
 146 DEDUCTIVE IDEA OF LAW 
 
 physico-chemical forces is proved, we cannot say the 
 same of the physico-chemical forces in relation to the vital 
 forces. Experience does not show this kind of a trans- 
 formation, nor does it authorize us to conclude in 
 favor of the thesis which upholds the transformation of 
 nervous force into mental force. The fact shown is only 
 this, that psychological variations correspond to the 
 physiological manifestation of the organism. The simple 
 parallelism is not indicative of transformation because it 
 can be derived from the union of diverse elements, which 
 are reciprocal conditions, or from a kind of bilateral 
 existence of the same energy. Neither does experience 
 and reason force us to hold that everything is reducible 
 to matter and motion, and that every formation is 
 resolved in the last analysis into its different distribu- 
 tion. The existence of the products of evolution, which 
 have properties not contained in their components, is 
 undeniable. Lewes distinguishes resultant facts which 
 should be referred integrally to their cause, and emergent 
 facts which cannot be referred to them, because they 
 contain new qualities not included in the elements from 
 which they are derived. Life, for example, presupposes a 
 physico-chemical combination, but that is not the only 
 cause, and, therefore, life is an emergent fact, like mind 
 which presupposes life but cannot explain it. If, 
 therefore, there are true emergent facts, if evolution 
 proceeds through heterogeneous generation, the new 
 products cannot be created by mere mechanical causes 
 from the various distributions of matter and motion, but 
 must be born from intimate energies. Recourse cannot 
 be had to the conception of an energy innate in the sub- 
 stratum, in order to make the principle of causality clear 
 and to show the truth of emergent or heterogeneous facts. 
 57. Mechanical Evolution. Mechanical evolution 
 explains all reality by foreign elements and prop-
 
 MECHANICAL EVOLUTION 147 
 
 erties. Its idea of force as a movement of matter 
 and an extrinsic movement attests its incomplete- 
 ness and absurdity. Within its own confines, the 
 mind cannot understand either the highest products 
 of volition, which contain something new and not 
 reducible to mechanical elements, or even the direction 
 of forces, which is observed in a gradual ascent from the 
 forms of the kingdom of nature to that of the spirit. 
 The facts of the cosmic order cannot be reconciled with 
 mere mechanics, because in that case everything would 
 be the effect of external and casual combinations of 
 motion. Pure mechanics and causality are logically 
 one and are in absolute antithesis to the direction of 
 forces and coordination. The conception of a causality 
 or permanent accidentality, the presupposition of 
 mechanical transformism, is a contradiction in terms, 
 because true chance is always dissimilarity, difference, 
 and variety, admitting the infinite indeterminateness of 
 nature in her productive activities. A chance which is 
 always repeated is no longer chance ; it is its opposite ; 
 mind, as Vico would say. Reality has not only external 
 and mechanical properties but originally possesses other 
 internal powers and subjective and dynamic qualities. 
 Through evolution, it is continually raised, assuming 
 more complicated, heterogeneous, and perfect forms. 
 But even from its lowest origin, it has shown two kinds of 
 qualities. The external characteristics predominated at 
 the beginning and it is only later that final supremacy of 
 the internal qualities has been assumed. At first, 
 reality, though appearing with both kinds of properties, 
 assumed forms more natural than spiritual ; now the 
 opposite is true. The internal property, at first, is 
 simple energy enclosed in the atom, which is not identi- 
 fied with receptivity, nor related to motion communi- 
 cated from without. It is at first a power of modifying
 
 148 DEDUCTIVE IDEA OF LAW 
 
 relations by the use of means within its grasp, nor is it 
 vital and psychical as Masci, the author of an efficient 
 criticism of mechanical transformism, has pointed out. 
 Such energy, nevertheless, is the first and weakest form 
 of reaction that emphasizes, rather confusedly, the 
 nature of the subject. Afterwards, the internal property 
 gains more control, develops more, becomes more active, 
 responds better to stimuli, succeeds in modifying the 
 relations by the actions of means within its grasp, and 
 advances by degrees to the sensibility of an animal and 
 the knowledge of a man. Knowledge is not, however, 
 the effect of sensibility. Sensibility is not derived from 
 irritability and the latter is not formed from the elements 
 of inanimate nature. Each of these facts is constituted 
 from qualities that are not found in the precedent form. 
 It is heterogeneous, and depends upon a particular and 
 new attainment of the energy intrinsic in the material 
 substratum, not explicable with the simple conceptions of 
 matter and force as attributes extrinsic to the body. 
 From this point of view, it is not true that the problem 
 of the origin of the mind is identical with that of the 
 origin of life, although the mind is not possible within 
 the limits of experience without sensibility, and sensibility 
 is not possible without irritability, mobility, nutrition, re- 
 production, and so on. The phenomena of life do not 
 appear without an organic synthesis of the material 
 elements, although it may be confused, indistinct, and 
 rudimental, and do not exist before it. Sensibility is 
 always connected with some kind of an animal structure, 
 and does not develop prior to it. Under this principle of 
 intrinsic energy to which the phenomena, not resolvable 
 into matter and motion, are reduced, evolution compre- 
 hends reality, understood in its integrity. 
 
 58. Habit. The theory of evolution in general, as 
 explained by the Darwinists, has a distinctly mechanical
 
 HABIT 149 
 
 character. Lamarck states that the active principle of 
 transformation in animals is the environment which 
 modifies the manner of living and creates new habits and 
 needs. It is capable of changing the substances of nutri- 
 tion and the structure of organs. Darwin starts out with 
 the superiority which is obtained by organized entities by 
 the accidental acquirement of advantageous qualities in 
 the vital competition or struggle for life. Malthus 
 raised this intuition to the dignity of an economico- 
 demography; and later it has proved true in biology. 
 Habit fixes this quality, heredity transmits and consol- 
 idates it ; and natural selection is attained by the origin 
 of new species. For Lamarck, variation is established 
 little by little in the course of existence; for Darwin, it 
 appears even from birth or during embryonic life and is 
 not reliant upon heredity. It is extended by Spencer to 
 the intellectual life and by others to personal character- 
 istics. It is corrected to avoid the intrinsic defect of its 
 childish development, which led to the hypothesis of the 
 "tabula rasa" of the old empiricists and materialists. 
 But this well worked out correction does not exclude 
 the hypothesis, because hereditary predeterminations 
 resolved into their primal elements and, considered at the 
 moment when they are fixed upon the life and spirit, are 
 only characteristics imported from without. The spirit 
 especially, before receiving such impress from external 
 circumstances, before habits and hereditary transmis- 
 sion have affected it, is a blank, unfigured slate. It, at 
 that moment, has only receptivity; later it acquires 
 spontaneity which arises from the accumulation and 
 reinvigoration of the impress given. From this it follows 
 that the theory cannot be freed from the representation 
 of the living being as passive and of the spirit as a mere 
 echo of the world which surrounds it and to which it 
 adapts itself. Yet the spirit lives a life which has need
 
 150 DEDUCTIVE IDEA OF LAW 
 
 of corporeal excitements and is active and develops 
 according to its own laws. It is true, nevertheless, that 
 habit introduces into life a method that heredity can 
 transfer and increase without an original disposition. 
 Habit is a particular attainment of a living being ac- 
 quired by the frequent repetition of the same actions or 
 by the prolongation of a single act. Aristotle observes 
 that some men contract with a single impression a habit 
 more complete than others contract upon frequent 
 repetition. Habit produces the great result of making 
 the past live again in the present and future, by diminish- 
 ing gradually the force necessary to an act and increasing 
 the energy and facility of the power to do it. With this 
 understood, it is not hard to see that habit, arising in 
 some manner from repetition and continuity, is com- 
 posed of many movements of which the first is the germ 
 that begins the series and is shown in the second. The 
 second movement has its reason in the first; the latter 
 must be derived from some other cause besides the 
 habit, therefore it is primal and new. Although the 
 first movement is simply accidental, yet the life and 
 spirit move; if they move, it signifies that they can 
 move themselves. They have a natural habit of 
 motion. Plants and animals respond to an external 
 excitement. They are, therefore, excitable and have a 
 natural disposition to excitement. On the other hand, 
 habit is not a creative power; it is the original energy, 
 the same nature grown, developed, and reinforced. 
 
 59. Heredity. What has just been said about habit 
 can refer as well to heredity, because in re petition, each act 
 inherits something from its precedent and transmits it, 
 slightly increased , to a subsequent act. Habit is an hered- 
 ity circumscribed by the confines of the life of an individ- 
 ual. Heredity is a habit which passes from generation to 
 generation. Like habit, it is connected with the laws of
 
 HEREDITY 151 
 
 evolution, giving the qualities fixed by repetition or pro- 
 longation of acts by the ancestors to the descendants. 
 If evolution was not followed by heredity every new 
 modification would disappear at the death of the individ- 
 ual. And if there was heredity and no evolution, the 
 entities would be always identical and there would be no 
 change in the world. Like habit, heredity has no 
 creative power but is a faculty of growth, or consolidation 
 and perfection. In fact, disease, wealth, and nobility, 
 in that they can go back to a remote age, presuppose a 
 first individual who was the victim of his own constitu- 
 tion and external circumstances, a head of a house that 
 knew how, by merit or force, to acquire a title and 
 amass wealth. In this way he led to dispositions which 
 are not the children of individual or hereditary customs 
 but are the product of accident free from any connection 
 with nature. The accidental cannot be understood, 
 when we abstract the character of the being in which it 
 is found. It is an anomalous variation but not a con- 
 tradiction of the nature of the being. It is an anomaly 
 in respect to ordinary methods and derived character- 
 istics but not in respect to essential characteristics. 
 We must, therefore, place by heredity the idiosyncrasy 
 which explains it, as a generation of idiots or epileptics 
 results in an idiot or epileptic descended from parents and 
 grandparents who were of sound mind and body. But 
 even if heredity is not a creative force, its importance, as 
 a means of transmission, is very great because the limbs, 
 trunk, head, features, form, volume, and irregularity of 
 the skeleton, proportions of the cranium, thorax, pelvis, 
 and spine, the quality of the system of circulation, of 
 the digestive, muscular, and nervous systems, the size 
 and form of the circumvolutions of the brain, the 
 abundance and scarcity of blood, the degree of fecundity, 
 the length of life, the voice, and the organic diseases pass
 
 152 DEDUCTIVE IDEA OF LAW 
 
 from father to son with great frequency. Neither can 
 one fail to recognize that psychological heredity trans- 
 mits the instincts; the modalities of the senses, memory, 
 imagination, various habits, sentiments, and emotions, 
 individual and national characteristics and finally 
 hallucinations, monomanias, dementias, and paralyses. 
 So physiological like psychological heredity is now 
 immediate and direct, and now mediate. In the last 
 case, there is a phenomenon of atavism which is not 
 conceivable without presupposing the latent state of 
 hereditary germs. 
 
 60. Mechanics do not fully Explain Evolution. 
 The laws of evolution cannot be understood in all 
 grades through mechanics alone, as the believers in the 
 genealogical theory maintain. The victory of mechanics 
 produces a diminution of force because if the quicker 
 motion conquers the slower it follows that the quicker 
 becomes relatively slower. This does not happen in the 
 intellectual, moral, and esthetic relations, in which the 
 stronger, that is the most ingenious and clever, the best 
 and most perfect character by its conquest gains and 
 does not lose in bounty, beauty, and cleverness. Experi- 
 ence shows that criticism makes the mind acute and gen- 
 erates new ideas; the ethical will, by facing evil, is 
 tempered and strengthened. The insufficiency of 
 mechanics and the need of theology not abstract and 
 extrinsic to life but concrete and objective, is proved by 
 one of the chief principles of the Darwinian theory, 
 the theory of the opportune adaptation of the entity. In 
 reality, the advantageous variations of adaptation are only 
 means to obtain the safety of the entity. It is not 
 accurate, therefore, to say that Darwinism, by itself, 
 considered in all its power, is the negation of finality, 
 that it is "finis finis," as Spaventa called it in "La 
 Legge del Piu Forte." Advantageous variations are not
 
 EVOLUTION INEXPLICABLE 153 
 
 pure and simple changes, because they signify ameliora- 
 tion and progress. The concepts of variability, heredity, 
 cause, and law are not enough to explain this increasing 
 perfection. To explain the discernment of the best 
 (which is natural selection) we need a conception of an 
 impulse towards an end. The struggle is seen, it 
 develops in the senses, but the selective choice or fore- 
 sight is supersensitive. It is neither visible nor tangible, 
 because it includes the end. The struggle, the separa- 
 tion of descendants, their association to better resist 
 environment, the more abundant nutrition of life without 
 struggle, are means of selection. And here we must 
 notice that the internal property of matter or intrinsic 
 energy of the atom, of which we have spoken before, 1 
 is fundamentally the initial and obscure tendency of the 
 lower grades of existence. Later it becomes the plastic 
 power of functions that are modeled in organs adapted 
 to their regular and full development and finally 
 raised to the rational will power of man. Without this 
 internal energy, or tendency, the progressive order from 
 the natural forms to the spiritual would not be intelligible. 
 It has been said and certainly sufficiently proved, that 
 the laws express the tendency of phenomena to develop 
 in constant determinate relations, upon which the cosmic 
 regularity depends. The error of the metaphysicians 
 did not consist in recognizing this tendency in human 
 beings, but in conceiving it to be a truly human finality 
 like that of consciousness and will. The tendency is the 
 germ of the immanent and objective theology shown in 
 modern empiricism, although the moderns openly dis- 
 agree with the search for ends called metempiricism by 
 Lewes, who denies their existence. 
 
 61. As yet, theEvolution of Hie Social Organization is 
 Inexplicable. The mechanical theory of evolution does 
 
 1 Cf. 57 ante.
 
 154 'DEDUCTIVE IDEA OF LAW 
 
 not take sufficient account of the fact that man enters 
 into the struggle of life not only with his organic facul- 
 ties, but with a complexity of intellectual and moral 
 forces capable of transforming the exterior world. It is 
 true that man is the son of earth, as the mythologists 
 say. It is true that he is made of water, air, and dust; 
 and that the harmony between the earth's forms, the flora 
 and fauna, are reflected in the phenomena of the other 
 fauna, humanity. But none can doubt the action of man, 
 who succeeds in modifying most noticeably the surface of 
 the world by stripping it of its forests and reclothing it 
 with new plants at his pleasure, by piercing mountains and 
 joining seas. This control of man over nature, in place 
 of the action of nature on man, which developed to a 
 large extent in primitive times, is important, because on 
 the one hand it is the beginning of civilization and the 
 growing series of the victories of intelligence, will, and 
 power over external agents, and on the other because 
 it serves to show (as Lampertico pointed out) that mes- 
 sology, or the science of the relation of beings to the 
 surroundings in which they live, from one aspect materi- 
 alizes man and from another spiritualizes the exterior 
 world. Furthermore, we must remember that the 
 great organism of human society, if not those of particular 
 political and national societies, has eternal life. It is 
 always acquiring more new forces as it extends and 
 deepens the connective tissue represented by the innum- 
 erable accumulations of experience which excite psychical 
 activities and functions not before developed; on the 
 other hand, the natural organism of the individual begins 
 in infancy, and proceeding toward adolescence, youth, and 
 maturity, is exhausted in old age and disappears. 
 Individuals arise and disappear, but human society goes 
 on forever and the history of the life of our race does not 
 end. Evolution, therefore, has a different meaning when
 
 HISTORICAL REVIEW OF THEORIES 155 
 
 it is studied in relation to this great organism. Spencer 
 himself distinguishes the inorganic from the organic and 
 super-organic evolution, although he admits that inorganic 
 matter is not conf usable with life, and that the latter 
 is not one with the ethical and social organism. It is 
 certain that science has not reached the point of sur- 
 prising the life that lies outside of matter, that is, the 
 transformation of inorganic matter into an organized 
 body, neither has it yet been able to show how the ego 
 and the spiritual life of the human race are derived from 
 the combinations of atoms. Two great modern nat- 
 uralists stop before the continuity of molecular motion in 
 the phenomena of life and consciousness. One is 
 Virchow and the other Tyndall. 
 
 62. Historical Review of the Theories of Evolutions. 
 We may here recall that the theory of evolution has its 
 roots in the ideas of Aristotle, Leibnitz, Vico, and Hegel. 
 Aristotle conceived of the spirit as action or ivre\exta, 
 and the body as power or matter; for him the nutritive, 
 motor, sensatory, and intellectual spirits produced the 
 various grades of life, where nutrition, motion, the senses, 
 and mind are respectively predominant, and form the 
 concrete development of the tvreXexfa. The spirits 
 or faculties are placed so that the lower and the less 
 complicated have the possibility of the higher and are 
 contained and at the same time governed by the latter. 
 Leibnitz regarded the spirit as a monad. The monad 
 completes an intrinsic evolution, in which the universe 
 is contracted (as Bruno poetically says) by the represen- 
 tative power of each monad. Extension, having its roots 
 in the obscurity of the monad, is a phenomenon of the 
 latter. Vico understood that trufe principles become real 
 through evolution ; things first being evolved from them 
 and ultimately terminating in them. The nature of 
 things, he said, is nothing but their birth. The spirit,
 
 156 DEDUCTIVE IDEA OF LAW 
 
 for him, changes from sense and imagination to fully 
 developed reason; whence the evolution of the three 
 historical ages. Neither can it be doubted that from the 
 Logos to nature and from nature to spirit is, for Hegel, 
 a complete evolution. In this his followers and all his 
 adversaries agree, although the latter say that it is a 
 question of purely dialectic and subjective evolution.
 
 THE SPIRIT AS A MONAD 157 
 
 CHAPTER V 
 
 COROLLARIES OF THESE THEORETICAL 
 PRESUPPOSITIONS 
 
 THE THEORY OF EVOLUTION AND PSYCHOLOGY. FUNDAMEN- 
 TAL SENTIMENT AND THE SENSATIONS. CONSCIOUSNESS AND 
 ITS ORIGIN. SENSIBLE AND COGNITIVE REPRESENTATIONS. 
 THOUGHT AND THE CATEGORIES. COGNITION ACCORDING TO 
 OBJECTIVE EMPIRICISM. CRITICISM OF THAT THEORY. 
 
 63. The Spirit as a Monad. The person presupposes 
 psychological life in its highest grade ; the spirit, purely 
 sensitive, united to the body cannot at once assume 
 the position and title of a person. The theory of 
 evolution, applied to the spirit, strictly understood 
 in the fullness of its activity, completes and amends 
 a fundamental notion of ancient psychology and re- 
 moves a great difficulty. Ancient psychology denned 
 the spirit as a simple substance and went no further, 
 while the physicists base their theories on atoms or 
 monads, from whose combination bodies are derived. 
 Now how can the psychological monad be distinguished 
 from the physical? The conception of a simple sub- 
 stance is not enough to explain fully the spirit and deter- 
 mine its full development. We must consider the spirit 
 not merely as a monad, but as action and energy shown 
 in the rich development of its attitudes and capacities, 
 because its true essence lies in' action and growth, as 
 experience teaches us. The great difficulty which evolu- 
 tion removes lies in the vexed question of the relation of 
 the spirit to its capacities. Gallupi thinks that external
 
 158 COROLLARIES 
 
 and internal sensibility, analysis, synthesis, imagination, 
 desire, and will are original, diverse, and irreducible 
 qualities of the spirit. Cousin, Rosmini, and Lotze 
 seem to have the same opinion. Lotze writes that there 
 are many possibilities in the specific nature of the spirit 
 which can contain original diverse characteristics as 
 easily as the matter composing the earth can be variable. 
 Such possibilities are realized under the influence of 
 external impressions. On the other hand, Condillac, 
 Herbart, Spencer, and Bain believe that the capacities 
 are only quantitative differences. Condillac states that 
 all the powers are transformations of sense thus 
 thought (and here he agrees with Campanella) can be 
 called rare and pure sense. Herbart does not believe 
 in original differences in the capacities, nor in moments 
 of development, but regards the differences as states of 
 the spirit growing out of representation. Representation 
 is the conservative act of the spirit disturbed by impres- 
 sions. The spirit is one of those simple " reals," not 
 relative, but existing of itself, which Herbart thought 
 out to solve the contradictions in the world of phenomena. 
 If it is thus self-sufficient and has no need of contacts; 
 if contacts do not alter its being and are accidental, it is 
 not true that representation and the capacities are 
 reducible to external states and are subject in their com- 
 binations to the laws of mechanics. The teaching of 
 Spencer and Bain, that sentiment, emotion, and will are 
 methods of adaptation and association, does not differ 
 much from this theory. In the judgment of the most 
 famous English psychologists of to-day, the law of 
 association, illustrated by Hobbes, Hume, and Hartley, is 
 the equivalent in psychology of the law of attraction in 
 the physical world. 
 
 64. Spirit is not Divisible, Qualitatively or Quantita- 
 tively. These beliefs do not harmonize the unity of the
 
 SPIRIT NOT DIVISIBLE 159 
 
 spirit with its concreteness or multiplicity of capacities. 
 In fact, those who believe that the capacities are mere 
 qualitative and original difference implicitly deny the 
 identity of the spirit, since they can only conceive of such 
 differences as characteristics, elements, and parts. In 
 qualitative difference each spirit is not a whole entity, 
 but a part of an entity. In it an entity is divided and 
 variously distributed, each part having its own content. 
 Now experience proves that the spirit is a single indivis- 
 ible force. When it begins its life from the senses, it does 
 not lack representative virtue, mind, and will; and when 
 it is self-revealed in reason, it does not cease to be sense 
 and representation. In both cases, there is only the 
 prevalence of one particular form over the others. They 
 who think that the capacities are qualitative differences, 
 if they do not deny the identity of the soul, at least do 
 not explain its various development, because between 
 sense, representation, and intellect there is difference 
 apart from the abstract relation of more or less. In 
 intellect there is sense, but it is sense resolved in a new 
 and diverse manner of the spirit which cannot be shown 
 by signs of addition or multiplication. Granted that 
 the capacities are quantitative differences, and there- 
 fore extraneous determinations of the spirit, it follows 
 by this theory that continuous and profound psychologi- 
 cal phenomena (a never-ending qualification) cannot be 
 explained. Therefore, some say that the contrary theory, 
 which we have denied, is true, and that the capacities must 
 be original differences, notwithstanding the arguments 
 to the contrary just sent forth. But the truth is that 
 they are not quantitative nor qualitative differences 
 alone, but moments of development; various changes 
 of the spirit in its progressive movement can be seen in 
 both quality and quantity. The spirit is a unit differing 
 within itself; it is a great energy and power which
 
 160 COROLLARIES 
 
 assumes diverse and opposite forms, because it is both 
 sense and reason, instinct and will, and is shown as 
 necessary and free, as moral and immoral, as just and 
 unjust, as impious and good. These forms so interpene- 
 trate that the lower are contained and resolved in the 
 higher; so representation has within itself sensation as 
 matter. Thought, in its turn, comprehends and raises 
 to its own level the data of representation. The stages 
 of nature are not similar to the forms of the spirit, be- 
 cause the former are separate entities. Mineral, vege- 
 table, animal, and human stages, are self-sustaining, 
 although the vegetable presupposes the mineral, and the 
 animal succeeds the vegetable, and man develops after 
 all of them, which are, nevertheless, the terms of evolution. 
 65. Spirit and the Senses. The spirit has know- 
 ledge and will. It is a theoretical and practical pro- 
 cess. Aristotle says that spirit joins with sense, 
 appetite, knowledge, and action. The psychological 
 disposition of the spirit as sense, or as the cognitive 
 principle, is the nervous system which transmits 
 impressions; the muscular system serves the spirit 
 as appetite or volitive principle, in which there is a 
 contraction when an impression is transmitted to the 
 nerves. Sense is first indeterminate because it does not 
 know anything but life or its presence in the whole organ- 
 ism and lacks special organs. It is intimately connected 
 with some of the nerves and, therefore, grasps the general 
 conditions of the body, such as oppression, weariness, 
 vivacity, heat, and cold, inasmuch as they refer to the 
 economy of life. This property or indeterminate sense 
 of self is called vital by Zimmerman, while by Drobisch 
 it is referred to as the barometric sense. Rosmini calls 
 it fundamental, because it is found in all of the sensations, 
 which are its methods. Who can hear any sound or see 
 any sight without feeling himself alive? Bain and some
 
 SPIRIT AND THE SENSES 161 
 
 modern psychologists are forced to recognize it under 
 the name of organic life, something having a continual 
 and optional action and capable of noting the state of the 
 muscles, nerves, circulation, respiration, and digestion. 
 The primary, indeterminate sense becomes determinate 
 and is specialized in the muscular, tactile, auditory, vis- 
 ual, olfactory, and gustatory sensations. The muscular 
 sensations are connected with the condition of the muscles 
 and teach us the different degrees of tension in the organs 
 in motion, and the measure of their force. They 
 consist of the pleasure or pain growing out of the exercise 
 of the organs themselves and always have regard to 
 motion. They are elementary and enter into every kind 
 of sensation, because it is not possible to feel without 
 motion. They differ from the tactiles because the latter 
 presuppose contact with external stimuli. Bain con- 
 nects them with a spontaneous and primitive activity 
 which comes from within and is not a reaction against 
 external stimuli. He states that the brain not only obeys 
 impulses but is gifted with spontaneous action, and that 
 a nervous influence, transmitted through the motor 
 nerves and exciting the muscles, is a product or automatic 
 method of the brain itself under the organic stimuli of 
 nutrition. Bain furnishes proof of his statements, and 
 Stuart Mill praises him for having bridged a large gap 
 in the psychology of association. This lacuna was the 
 denial of a primitive energy within ourselves which is not 
 the echo of the external world. Certainly it is not pos- 
 sible to derive sensation from impression, because the 
 former is in the appreciation of the latter, as we have 
 said above, and because in feeling, there is always an 
 original spontaneity which transforms the action of the 
 stimuli, limits their force, and sometimes is not influenced 
 by them, leaving them, as it were, standing apart. 
 Such energy is psycho-physical of this there can be
 
 162 COROLLARIES 
 
 no doubt. In fact, the proper character of psychic 
 activity is that which, excited by stimuli, produces a 
 new fact whose causes, from a point of view of quantity 
 or quality, are not found in the external world. Psychic 
 activity, consequently, is not comparable to an overflow 
 because of superabundance, and it is what completes the 
 transformation of the stimuli when they have done 
 their part towards the psycho-physical process. All 
 these sensations muscular, tactile, auditory, visual, ol- 
 factory, and gustatory can either be united with the 
 vital sense or not; if they are united with it, they 
 increase its force; if they are not united, they impede 
 its development. In the first case, the sensation is 
 pleasant; in the second, disagreeable; pleasure and pain 
 give the tone to our sensations. 
 
 66. Consciousness. Let the sensations be external, 
 that is, caused by stimuli operating outside the 
 body; let them consist of pleasure or pain, and 
 they will always partake of the nature of sense 
 which cannot get beyond the individual as its ter- 
 minal, and which always concentrates in a particular 
 and temporary affection of a sense without being able 
 to distinguish it from sensation in general. Sensa- 
 tion is always an indistinct whole of actively sensible 
 beginning and passively felt cause. If distinction 
 appears, sense is resolved and gives place to conscious- 
 ness which alone is fitted to distinguish subject from 
 object and to refer the latter to the former. The cause 
 becomes the object, a quid placed before subject 
 when consciousness is shown. Psychical activity arises, 
 stimulated by its own sensitive acts, above the com- 
 binations of sensation and is not exhausted in them. 
 The first form of consciousness is a bare feeling of dif- 
 ference in the subject which is conscious of itself through 
 a sense terminus and a reference of the object to the sub-
 
 CONSCIOUSNESS 163 
 
 ject that is called sensible but which must not be con- 
 fused with pure sense indistinct in itself. In this grade 
 of psychical activity lies the first product of the mind 
 in that the matter gathered by our sensitive impressions 
 is formed by the faculty and converted from a sensitive 
 cause into an understood object. Knowledge, therefore, 
 is derived from something distinct from itself, which is 
 not simple impression or sensation, because its object 
 is not transferred from without into the spirit but 
 consists of an intellectual formation. Its possibility 
 lies in some a priori original conditions, as Kant said. 
 The necessity of a spontaneous and original psychological 
 principle in the explanation of the fact of cognition has 
 not escaped the great empiricists. Campanella thinks 
 that knowledge of external things, called "addita," 
 must rest on "cognitio abdita," that is, on the certainty 
 of being, power, will, and knowledge. Locke disagrees 
 with the innatism of Descartes but admits innate atti- 
 tudes and natural constituent capacities of the spirit. 
 Spencer recognizes an hereditary active preformation 
 in the mind, and that mind is not really explicable with- 
 out it, because habit is not formed and transmitted to 
 descendants. It has been shown by not a few psychol- 
 ogists that consciousness cannot be an association of 
 states, for these states must either be considered as 
 belonging to the entities whose states they are, and in 
 such a case the result is a sum and not a unit, or they must 
 be regarded as convergent in their action towards a 
 point without themselves, and then the reason and 
 manner of the convergence would have to be understood 
 and the point of convergence known. On such a hypoth- 
 esis, there would be a complex state, which could not 
 be a state proper, because it would lack the necessary 
 unity. For the phenomenists and pure associationists, 
 the ego is not a reality but a complexity of states bound
 
 164 COROLLARIES 
 
 together in various relations. Neither can conscious- 
 ness be the function of any point of the brain because 
 matter is of itself complex and cannot be conceived 
 of as a unit nor can the sum of things be so considered, 
 granted that it can be conceived of at all. Lacking the 
 point to which the forces are applied, consciousness 
 cannot be assimilated to the single result of concurrent 
 forces or to the electric current generated by action and 
 reaction of several substances, because it, too, is composed 
 of the particles of a fluid. Consciousness studied in its 
 essence and in its primitive simplicity as an act of distinc- 
 tion or reference is not born from the sentiment of the 
 organism or synthesis or from association and necessity. 
 Ribot thinks that the ego, the sum of the actual states of 
 consciousness, is in its continuity of time the product of 
 memory, depending fundamentally upon the complexes 
 of sensations provided by all the parts of the body. 
 Consciousness in his mind changes by reason of the rapid 
 or slow variations of such sentiment, hence cases of the 
 successive formation of the ego, of the disintegration of 
 the ego into different egos, the origin of the pathological 
 phenomena of double consciousness. Some speak of a 
 new state of the brain cells which have the virtue of 
 making a diverse ego appear, but Ribot and others, 
 (writes Masci, in his book "Coscienza, Volonta, e 
 Liberta,") do not agree that their theories can be applied 
 to formed, developed, concrete, and individual con- 
 sciousness and not to the original form of consciousness. 
 Certainly the sense of self, of synthesis, always supplies 
 new material or content to consciousness, which, however 
 mute, is together with memory the foundation of per- 
 sonal identity expressed in "ego qui quondam." With- 
 out doubt the concrete individual ego has a history. 
 It presupposes a long and complicated succession of 
 states which imply association, memory, and mutations
 
 REPRESENTATION 165 
 
 of sensibility. The simple act of distinction and ref- 
 erence, however, does not emanate from impression or 
 sense and is independent of memory and the recognition 
 of the sense termini. For memory itself presupposes 
 the unity of knowledge and the act of reference, because 
 recollection is not possible without reference. Con- 
 sciousness in its elementary form is empty; it is the 
 visive internal centre to which psychical phenomena 
 belong and through which they are recognizable and 
 appear through comparison. 
 
 67. Representation. When an impression and 
 physical cause are withdrawn the sensation does not 
 disappear but is preserved in the mind and can be 
 reproduced. Reproduced sensation is representation. 
 It is known that similar representations are based on 
 a single representation. The contrary are elided and 
 the different ones form groups. Elision is the retire- 
 ment of the weaker representation to the back of the 
 mind, from which it comes forth when it is reinforced 
 by a new one either like it or opposed to it, but coexistent 
 in space or time. Representations are evidently forces, 
 and we should not be surprised that they are subject to 
 the laws of mechanics. Representation is derivative 
 as the reproduction of a sensation, and so representative 
 consciousness or the second form of consciousness, in 
 which the external object is the image of something with 
 given properties, is derivative, although the object is a 
 simple existing quid and nothing else for sensible 
 consciousness, the most elementary and poorest of 
 consciousnesses. Psychical activity is shown in this 
 field with the power of directing the force of our represen- 
 tations, a proof that reproduction is not voluntary. It 
 controls when the mind separates the psychological 
 associations from representations founded on extrinsic 
 and accidental combinations, and gives them their
 
 166 COROLLARIES 
 
 logical relation. Abstraction is the act of separation or 
 isolation of a characteristic of a common quality from 
 several particular representations. Thus, the common 
 image or abstract universal is formed, of which we 
 have spoken before. 1 Language is intimately con- 
 nected with the image or common representation, which 
 is intermediate between the singleness of the sensation 
 and the true and effective universality of the ideas. A 
 word is a phantastic universal or representation, because 
 the sound of which it consists is made to indicate a 
 given property of something, a property which recalls 
 to the mind the whole thing with its other characteristics. 
 Grimm, Curtius, Steinthal, and Max Miiller give this 
 definition and agree in recognizing the representative 
 virtue of words. By means of words, a picture of the 
 ever changing nature of objects is attained. The mind 
 can thus rise from the sphere of representation to that 
 of thought. The conversion of the image into a con- 
 cept is quite easy when the image is not absolutely fugi- 
 tive, but is connected with a sound. The predominance 
 of the original activity of the mind arises in the structure 
 of a language, because conjunctions, prepositions, and 
 adverbs express relations that are not born of impres- 
 sions or representations, as nouns and verbs, but con- 
 stitute the formal and categorical element of language. 
 68. Thought. Thought emerges from representa- 
 tion. Knowledge advances and becomes intellectual. By 
 going deep and plunging its searching look into things, it 
 conceives necessity and universality. The object of knowl- 
 edge and mind is universality. No longer phantastic, 
 imaginative, and shifting, but that in which the essence 
 is understood, the universal is the combination of all the 
 qualities and condition of phenomena, without which 
 phenomena could not exist. There is still progress in 
 
 1 C/. 32, ante.
 
 THOUGHT 167 
 
 this form, because the object is not the bare quid, 
 of which the existence alone is known, nor the thing 
 with ever changing . properties. The intellectual, as 
 well as the perceptive or representative knowledge, is 
 derivative. Originally, in all its phases, there was only 
 the difference between subject and object, a distinction 
 which did not lie in impression and sensation. In such 
 a state, the synthetic activity of the spirit gained 
 theoretically its highest development, since the know- 
 able object was understood, and since representation 
 cannot show necessity and universality; it deals with 
 contingent or particular objects. There are logical 
 conceptions to which no sensible or representative 
 matter corresponds: for example, substance and cause. 
 It has been pointed out, therefore, that all their value 
 lies in their form alone and that they can be likened to 
 algebraic signs which do not express quantity, but its 
 function. It is not possible, says Locke, to obtain the 
 conception of substance from experience, because we 
 conceive only the methods ; substance is a mere abstract 
 idea, a collection of methods. Reality, Hume holds, 
 shows facts joined and not necessarily connected. 
 The conception of cause can only be formed through 
 habit. Locke and Hume are right in showing that the 
 two categories of substance and cause cannot arise 
 from experience, but they are wrong in exchanging 
 substance, which is an object thought of as an intrinsic 
 mass of qualities, for a simple collection, and what is 
 habitual for what is logically necessary. Bain has 
 recourse to instinct as denned by the Scotch school, an 
 inexplicable and mysterious principle, as a basis for 
 causality. These categories of purely logical concepts 
 are not innate, not beautiful and formed in the mind, 
 but are original and constitute the active foundation, 
 the systems of the functions of the mind itself, which,
 
 168 COROLLARIES 
 
 stimulated by impression, produces and functionizes ac- 
 cording to its conditions and laws and makes a first 
 acquirement without which no other acquirement is 
 possible. The cognitive act, if not impression or passion 
 transferred by the stimulus of the mind, is a primitive 
 acquirement, the conversion of sensation into an under- 
 stood object, the comprehension of the object and the 
 formation of experience as cognition. 
 
 69. Origin of Mind according to the Positivists. 
 Some positivists say that it is an error to presuppose 
 an always constant organization of mind, and not to ad- 
 mit that necessity or universality can be derived from 
 experience. They criticize Kant, recognized by them 
 as the forerunner of scientific metaphysics, for these two 
 opinions, and hold that the a priori forms are explicable 
 by the supra-individual factor of experience itself. This 
 factor is not logical activity or the original synthetic 
 activity, but is found in the more recondite history of 
 psychics and human culture. The apperceptive func- 
 tion of thought, according to them, belongs to the 
 knowledge of civil man, because in primitive experience 
 the logical factor is given by a simple process of organ- 
 izing the evidence of the senses. The dualism of the ego 
 and non-ego is not original. It is a gradual formation 
 that the child learns. The ego is nothing more than 
 a whole by coalization. The generative elements of 
 experience, says Angiulli in the book cited, 1 are found 
 in events anterior to the distinction of the ego and 
 non-ego, that is, in the sphere of unconscious experi- 
 ence and mentality. The problem of the origin of mind 
 is that of the origin of life. The first element of experi- 
 ence is the reaction of the organic substance under 
 stimuli. This reaction or irritability is fundamentally 
 inseparable from sensibility and motion. Irritability, 
 
 1 "La Filosofia e la Scuola," cit. 53 ante.
 
 VARIATION DEPENDS ON STIMULI 169 
 
 sensibility, and mobility are intimately connected with 
 nutrition and reproduction. The law of nutrition is 
 adaptation and that of reproduction is heredity. They 
 say that mind is the capacity of an organism to learn 
 through experience, so that adaptation to external relation 
 becomes gradually selective. The second element is 
 the power of organic matter to preserve the effects of 
 sudden change in the form of molecular dispositions. 
 Sensation is not an element of the mind unless associated 
 with precedent states. It has a power of assimilation, 
 distinction, a kind of unconscious judgment. This 
 assimilative something is connected by the nerve groups ; 
 it is established by the experience of the race and gen- 
 erated by the same nerve organs in the earliest adapta- 
 tions of animal life. The third element of experience is 
 attention, which has the virtue of transforming sensation 
 into perception, consciousness into autoconsciousness, 
 the image into the ideal. 
 
 70. Variation Depends on the Stimuli. Following 
 Angiulli, who is the most lucid interpreter of the doc- 
 trine in question, the method of nutrition is psycho- 
 logical, that of memory is psychical, and that which 
 governs the assimilation of external excitements is 
 nervo-psychical. This is the energy of cerebral centres 
 with a directive and inhibitive motion by which the 
 mental acts are shown to us as the effects of an internal, 
 not external, activity. It is the result of hereditary 
 accumulations which, if not very numerous, give the 
 mind a greater power of modifying and correcting 
 existing phenomena. The mental faculties are formed 
 by the aggregation of the residuals of experience which 
 interact to create organs, functions, and capacities. 
 The capacities produced by association differ, neverthe- 
 less, in quality, because we see even in the sphere of 
 natural entities such a result in the combination of
 
 170 COROLLARIES 
 
 several elements having properties different from those 
 of the single components, as Lewes has shown. Experi- 
 ence is an evolution in which the products are con- 
 stantly different from their components. Psychological 
 elements are mutable unities and presuppose in their 
 development, especially in the phase of their abstraction, 
 collective and historical experience. The necessity and 
 universality of knowledge are based on the equivalence 
 of a fact to the sum of its factors. The impossibility or 
 inconceivability of the contrary has always had its base 
 in real or possible experience. We must explain every- 
 thing by the energy of the stimuli, because the differ- 
 ences in the forces and qualities of entities are the first 
 causes of the differences in the structure and property of 
 our senses. The eye sees light because it is a product 
 of light. There exists nothing in an object of itself, 
 because what appears is the real. In the subjective 
 order, the thing of itself, the ego, is the physiological 
 function, the manifestation of cosmic forces. Fact, law, 
 and cause are three aspects of the whole. Fact is the 
 sum of conditions, law is the fact regarded in its growth, 
 and cause is the fact considered in its conditions. The 
 principle of cause is that of the persistence and trans- 
 formation of forces. Things are only syntheses of prop- 
 erties. Knowledge of things is, therefore, real ; relative 
 in its realization, absolute as a whole. One cannot 
 speak of relative cognition without admitting absolute 
 cognition. 
 
 71. Dependence of Variance in Stimuli is Contrary to 
 Modern Thought. It is evident that the above theory is a 
 form of purely objective empiricism moving on the prin- 
 ciple that it is the res which gives the essence. What is 
 internal is constituted by what lies without; everything 
 is a derivative of the external. Yet by reason of its origin 
 modern empiricism should have a different character from
 
 THEORY OF KNOWLEDGE 171 
 
 the ancient because it, together with the principle of 
 idealism, is born from the principle of subjectivity. 
 There can be no more doubt that modern philosophy is 
 informed on such a principle in every direction, than 
 that ancient philosophy looked always to natural or 
 ideal objectivity. Natural objectivity was dominant 
 before Socrates; the philosophers sought truth in the 
 natural elements. 1 From Socrates on, truth was placed 
 in concepts and ideas regarded as objects. Modern 
 empiricism is not simply impressionism as Spaventa 
 shows, because, although he admits with Campenella 
 a "cognito abdita," he recognizes with Locke certain 
 natural attitudes of the subject, and conceives with 
 Condillac of sensation as an act of internal energy, and 
 follows the a priori of the Helmholtzian laws of causal- 
 ity with the logical and appetitive activity of Wundt, 
 and with the synthetic activity of Riehl's earlier 
 works. On the other hand, Cartesian idealism and 
 transcendental idealism prove clearly the dominance 
 of subjectivity. 
 
 72. Criticism of the Positivist Theory of Knowledge. 
 The theory set forth in the last paragraph confuses 
 experience, which is knowledge, complete cognition, 
 apperception, and certainty with feeling and living and 
 even with simple organic irritability, thus reducing it 
 to a mere impression. It denatures consciousness, 
 because it speaks of an unconscious experience, dis- 
 cernment, and judgment. An unconscious experi- 
 ence is not an experience or a full cognition, but a 
 knowledge which does not know; an unconscious dis- 
 cernment is not an act which distinguishes object and 
 subject and refers the latter 'to the former. It is 
 not a judgment. Experience, comprehension, discern- 
 ment, and judgment always presuppose consciousness, but 
 can be unaccompanied by reflection. There are primitive 
 
 l Cf. Intro, p. 1.
 
 172 COROLLARIES 
 
 and spontaneous judgments, and there are secondary and 
 reflective judgments. Primitive judgments contain the 
 act of distinction and reference in which lies conscious- 
 ness; the secondary are the children of reflection which 
 necessarily implies the act of which we speak. All judg- 
 ments are conscious, but all are not reflective. We 
 must not confuse reflection with simple consciousness, 
 otherwise we will fall into error. Only in the mech- 
 anism of reproduction can we allow unconscious con- 
 ceptions and judgments in the sense of already formed 
 acts of consciousness, which have fallen into the ob- 
 scure background of the mind and lie there with a 
 tendency to come forward upon any of those occasions 
 of necessity which are tested in psychology. There is an 
 unconscious psychicality which embraces sensitive and 
 instinctive phenomena, and those of revivication which 
 form the indistinct substratum of the intellectual spirit 
 of Aristotle. But we should not confuse experience as 
 an act of preservation of sensation with an under- 
 stood object as a form of knowledge. Experience 
 alone can be one with conscious psychicality. Now the 
 theory above indicated carries the internal acts of man 
 into the animal and attributes those of the animal to 
 man; and, always retrogressive, it comes to the physical 
 properties of matter, the a priori of positivism, and 
 reaches the limits of materialism. 
 
 73. Knowledge is Subjective. Spaventa sounds a 
 grave warning in his posthumous work " Esperienza 
 e Metafisica," that in all this genealogical theory, 
 knowledge is considered as an effect of some kind, 
 as a phenomenon among phenomena; while it is 
 the condition of all phenomena, their principle, in 
 fact, it is phenomenality itself. If the world of phe- 
 nomena, that is, the real and relative world, is that of 
 representations, one cannot find the origin of knowledge
 
 KNOWLEDGE IS SUBJECTIVE 173 
 
 which is representation, because to find the origin of it 
 means to go back to a phenomenon from which it is 
 derived. And phenomena are representation, from 
 which it follows that knowledge and representation are 
 not derivatives, but are presuppositions if one wishes 
 to derive them from phenomena, and presupposi- 
 tions also, even if one derives them from phe- 
 nomena or from combinations of physical and sensible 
 elements. Things of themselves are not phenomena; 
 they are transcendental and not knowable, the combina- 
 tions of elements which are natural realities and not 
 representations or simple facts of sense, and cannot 
 produce representation. Thought and knowledge, experi- 
 ence, perception, and certainty become inexplicable in the 
 hypothesis of an absolute posteriorism. From this 
 arises the new objective empiricism which regards experi- 
 ence and even irritability as a kind of basis for external 
 stimuli, as a reaction of the subject which develops 
 its nature and constitution. Volens nolens, modern 
 empiricism should be informed on the principle of sub- 
 jectivity, from which it tries to separate. Knowledge 
 and experience are double in appearance but are funda- 
 mentally one, because the thing is present, apparent to the 
 ego, and would not be able to be present and appear to 
 the ego, if the ego was not apparent to itself. Nothing 
 appears to me if I do not appear to myself. In sensa- 
 tion, I do not feel anything if I do not feel myself ; in 
 knowledge I know nothing if I do not know myself in 
 what I know. I do not know without being present 
 with my nature in the object of my knowledge. From 
 this, it is seen that the ego is not without sensation, and 
 that it cannot exist after sensatton disappears, because 
 I feel nothing if I do not feel myself. Thought is the 
 same; if it is not original, it cannot develop. The a 
 priori here is the priority of myself, the apperceptive
 
 174 COROLLARIES 
 
 unity of original synthesis, and the energy which re- 
 duces the multiplicity of impressions to a single point. 
 This a priori is in every form of knowledge, even the most 
 elementary and poor. It belongs to man in that he has 
 experience and knowledge, in that it is certain and does 
 not belong to civil man alone, as the empiricists hold. 
 The accumulation of successive experiences upon which 
 they insist, the hereditary a priori, is possible exclusively 
 through such an originality of the ego, the basis of 
 Kantism. Such accumulation constitutes the concrete- 
 ness, the richness of knowledge, but knowledge has always 
 that double appearance which is single in fact, that 
 original distinction between subject and object about 
 which we have spoken. 1 The object is not the end of 
 sensation, it is the product of thought; it is born from 
 the conversion of the sensation into understanding. 
 Reality, objectivity, and truth are not found in blind 
 unformed sensation, but in the sphere of knowledge. 
 If reality lay in fleeting, variable, and contradictory 
 sensation, we would have to give up the search for truth. 
 74. Knowledge is "a Priori." It has been stated 
 that experience is evolution in which the products are 
 dissimilar from the nature of the components, 2 without 
 reflecting that by such a statement one denies the uni~ 
 versal principle of the causal equation. The effect, the 
 knowledge, would be conceived of as something absolutely 
 different from cause, that is, from the combination of 
 elements of natural reality and the acts of the senses. 
 The effect cannot be conceived of as something abso- 
 lutely different from the cause, because there would be 
 no connection between them. It would not be an effect. 
 Neither can it be regarded as absolutely identical with 
 the cause, because it would be only the cause repeated, 
 
 1 Cf. 66 ante. 
 *Cf. 53 ante.
 
 NOUMENON THOROUGH PHENOMENON 175 
 
 and in this way, too, there would be no result. Causality 
 is not abstract difference or abstract identity, but both 
 together, an a priori synthesis. If experience is admitted 
 to be the result of the sum of the indicated combination, 
 the heterogeneity of the result can be reconciled with the 
 continuity of the elements only by explaining in some 
 manner how thought is contained in what is not thought, 
 how light emerges from blackness, how the logical con- 
 nection, necessity, and universality are created by 
 mechanical combination, by physiological and psycho- 
 logic association, by contingency and particularity. The 
 necessary connection of the elements and factors of things, 
 and the impossibility of the contrary shown by every real 
 and possible experience are not derived from the aggre- 
 gation of the residues of experience. Certainly these 
 conceptions presuppose empirical data, but they are not 
 formed without the original activity of thought, which is 
 the base of knowledge. Full and true knowledge of a 
 thing is had when the mind understands its necessity. 
 Necessity understood is the very absoluteness of knowl- 
 edge to which some positivists to-day are tending. 
 Necessity and absoluteness exceed the confines of 
 sensible data of the experimental method and of 
 aposteriorism. 
 
 75. Noumenon is Knowable through Phenomenon. 
 It is objected that the reality of knowledge must fail 
 if it is admitted that knowledge expresses the nature of 
 the knower and is therefore subjective and relative. If 
 the essence of things depends upon our representation, 
 things are what they appear to us, they become phe- 
 nomena. In other words, the thing is lost in its repre- 
 sentation, and the theory of Berkeley is reinstated. 
 Is it not better to follow the path shown by Comte, and 
 sink representation in the object? The objection arises 
 from a false conception of knowledge which puts it in the
 
 176 COROLLARIES 
 
 vision of the object considered. Knowledge does not 
 lie in seeing an object which is without us, but in trans- 
 forming what the sense conveys to the understanding; 
 it is the projection and distinction of the object produced 
 by the mind. The existence of things, objectivity, and 
 reality, are one with their image in the mind. Things 
 are true only in cognition, and what is supposed to be 
 their existence before and without cognition is not their 
 true essence; it is nothing. A thing of itself without 
 relation to knowledge, a thing which can never stimulate 
 the subject and appear, cannot be said to exist. It is 
 right to speak of a thing of itself in that it is knowable, 
 that is, that it can appear to the mind, even if it does 
 not appear and does not make itself known. This kind 
 of thing of itself, which Kant even admits, makes the per- 
 petual possibility of phenomena, sensation, representa- 
 tion, and knowledge. It is the thing transcendental 
 in itself, not simply empirical existence or appearance, 
 nor mere ultra-empirical existence which, from its nature, 
 takes all reality from the object. The mistake of Spencer 
 lies in the conception of a thing by itself without referring 
 it to the mind. His absolute unknowable is gnostical, 
 add some positivists, because it is a thing of itself with- 
 out any relation to the mind and therefore has no rea- 
 son of existence. In this, it is like the religious, mythical 
 absolutes, and the metaphysical absolute (if self-sufficient 
 and self-ruled), for they become transcendental principles. 
 These positivists recognize three kinds of absolutes. The 
 methodological (or system of the ultimate concepts of 
 the sciences), the cosmic absolute (or the world as a 
 whole), and the objective absolute (or the perpetual 
 possibility of sensation and representation) . They recog- 
 nize the absolute in a certain sense, they admit meta- 
 physics, but only if scientific and experimental ; and here 
 the hated and abhorred metaphysics rise again to aid
 
 NOUMENON THOROUGH PHENOMENON 177 
 
 positivism itself in , its critical phases. Certainly the 
 existence of a real and intimate supreme principle cannot 
 be denied when philosophy is sought to explain the gen- 
 eral scheme of the world. There are some who wish 
 to find this principle in a series of laws always more com- 
 prehensive and universal, and there are some who seek 
 it in a series of forces or causes, or of ends and in the mind. 
 Denying the possibility of knowledge of the absolute, 
 some say that the ultimate law and end cannot be 
 known. By regarding only the series of law, one does not 
 see the cause; by limiting the attention to a series of 
 forces or causes, one cannot see the end. The absolute, 
 should include in itself law, cause, and mind, if it is a 
 true absolute. Spaventa says that ultimate law is 
 cause, ultimate cause is end, and ultimate end is mind. 
 He cites Bruno on this subject to the effect that "the 
 pursuit of the absolute" is to be made by "motion not 
 physical but metaphysical going round by the steps of 
 perfection and coming" thus "to the infinite centre." 
 By an indefinite direct line one will never reach the 
 absolute.
 
 178 PRACTICAL FOUNDATIONS 
 
 CHAPTER VI 
 
 PRACTICAL FOUNDATIONS OF THE DEDUC- 
 TIVE IDEA OF LAW. DEVELOPMENT 
 AND DIVISION 
 
 INSTINCT, DESIRE. AND WILL. CAPRICE AND MORAL FREEDOM. 
 THE CONSTANCY OF HUMAN ACTS AS SHOWN BY STATISTICS. 
 END OF MAN AND HAPPINESS. HUMAN HAPPINESS AND THE 
 LAW. THE IMPERATIVE, PROHIBITIVE, AND PERMISSIVE FORMS 
 OF LAW. LAW AS A PRINCIPLE OF COERCION OR COEXISTENCE 
 AND OF HARMONY. THE RATIONAL TRI-DIVISION OF LAW. THE 
 DIVISION OF GAIUS. 
 
 76. Other Attributes of the Mind. The mind has not 
 only knowledge but appetition, desire, and will. It is 
 a theoretical and practical process. The muscular 
 system is physiologically fitted for the practical 
 process. A muscular contraction or reflexive action 
 follows every impression transmitted by the nerves, 
 and, furthermore, it is not the simple mechanical effect 
 of the blow received, but has its form and measure 
 in the excitement of the organs. The impression is not 
 sensation and the reflexive action is not appetite. Appe- 
 tite is a state of psychical activity, in that it is a tendency 
 towards pleasure and aversion to pain. Reflexive action 
 is a physiological movement and is not to be confused 
 with a tendency. The appetite in its turn transforms 
 the stimuli and, considered in its indeterminateness, is 
 the same vital and fundamental sense and the same sen- 
 sitivity in motion of which Rosmini speaks. It is sen- 
 sation become practical activity.
 
 INSTINCT 179 
 
 77. Instinct. The first concrete and particular ap- 
 pearance of appetite is instinct, a tendency unconscious 
 of its ends and means.. Its end is the attainment of what 
 is best for the satisfaction of the needs without precedent 
 experience. Many biologists and psychologists derive 
 instinct from the adaptation of animals to their environ- 
 ment begun through necessity and persisted in through 
 useful experience and later become a hereditary and or- 
 ganic custom of the species. It is certain that in adapta- 
 tion generally, however large the part allowed genealogical 
 theories, we always need a nature in the plant and 
 animal capable of being influenced by external circum- 
 stances. Now this is presupposed by custom and heredity ; 
 it is resolved into an intimate and original force, and in 
 our case into a preexisting tendency to persevere in 
 pleasure and to avoid pain, an animal property. The 
 hypothesis of a "tabula rasa" is to-day abandoned by 
 the empiricists themselves. 
 
 78. Desire. The second state in which appetite is 
 developed is desire, a tendency towards a representation 
 which attracts the mind. In desire there is a knowledge 
 of the end but the choice of means is lacking, because the 
 relation between the end and the means is learnt, not 
 by representation, but from an already experimented 
 association of our internal states and external ob- 
 jects through reflection. So love, differing from pas- 
 sion, is a secondary form of appetite presupposing 
 representation. Love is a lasting, purposeful, ob- 
 jective appetite; passion is equally a derivative 
 state because it is referable to sentiment, but it is 
 a momentary desire or sudden attack and is not 
 associated with calculation and has no thought of the 
 object which has excited it. On the contrary, love 
 implies an end tenaciously sought with constancy of 
 purpose. It always looks to the object, and is like the
 
 180 PRACTICAL FOUNDATIONS 
 
 river that gradually overflows its banks and forms a 
 new path for itself, says Kant, while passion is like the 
 water that suddenly breaks a dyke and inundates the 
 land. Love is an attribute of man, a maxim of con- 
 duct, an end tenaciously sought. Passion is common to 
 animals, a sudden motion of feeling. 
 
 79. Will. The third and highest state of appetite is 
 will, which is considered by Aristotle because it partakes of 
 reason as a derivative power, originating in appetite itself. 
 In will or rational appetite are found, according to him, 
 the determination of ends and choice of means. There 
 is a common element in the inferior and superior appeti- 
 tive faculties, that is, in instinct, desire, and will. This 
 is spontaneity, a principle that is in us and not without 
 us. Now in instinct the end is immediately before us; 
 it is not joined by knowledge. In will, on the other 
 hand, the end is mediate. It is meditated upon and re- 
 flected about and is established sometimes as a necessary 
 and universal determination of conduct. The end is 
 necessary and universal, if it is the supreme and true 
 human end. Aristotle emphasizes this conception as 
 Fiorentino points out in "Lezioni di Filosofia," that 
 there is no deliberation about the supreme end, but that 
 there is deliberation about the means which are in our 
 power, that is, about those things which originate in 
 us. Spencer confuses physiological conditions with 
 psychical activity in regarding the will as a more compli- 
 cated and slower reflexive action. In reflexive action 
 there is an impression which is followed by a muscular 
 contraction; in instinct there is found a complexity of 
 impressions coordinated by heredity and organic custom 
 with a sum of muscular contractions; in will, several psy- 
 chical states are connected through a stimulus and enter 
 into a struggle ; the one that prevails is said to be the one 
 wished for. Instinctive action must be immediate by 

 
 CHARACTER 181 
 
 the effect of automatic association, and voluntary action 
 mediate and often sjow because there is a struggle 
 between the different series of representation. As im- 
 pression is not sensation, thus, as we have said before, 1 
 reflexive action is not a tendency, nor is it inclination, 
 aversion, or appetite. Evolution is not only a progress 
 of quantity but a progress of more perfect qualification. 
 According to Spencer, between reflexive action and will 
 there is exclusively a quantitative difference of more or 
 less complexity, and a mechanical difference of more or 
 less speed. On the other hand, if the conflict of internal 
 states is governed by laws of mechanical association one 
 could never explain the fact (attested by experience 
 as Aristotle pointed out) that the deliberation about 
 the means is restricted to those that are within our 
 power to adopt, and does not extend to other things 
 which do not lie within our power. 
 
 80. Character. A simple tendency is the immediate 
 rebound of pleasant or painful sensation and is not accom- 
 panied by knowledge. Desire or appetite, properly so 
 called, contains an attempt to recall a psychical state, that 
 is, a tendency with knowledge, but knowledge in mere 
 appetition is the spectator of an energy which has all its 
 being in the exciting object from which it takes its name. 
 In this state of practical activity there is knowledge, 
 but deliberation is lacking; impulse and emotion pre- 
 dominate. In will, on the other hand, knowledge is 
 active as reflection and reason capable of arresting an 
 impulse and of generalizing and submitting the objects 
 of desire to a judgment of practical objective experience. 
 It differs from emotion. Will, observes Masci, begins 
 always as an act of inhibition because it arrests, elides, 
 and converts the force of impulse into ideation, but 
 reaches fulfillment in an inverse process, by the transfor- 
 
 l Cf. 65 ante.
 
 182 PRACTICAL FOUNDATIONS 
 
 mation of ideation into impulse, becoming action. In 
 this lies the difference between involuntary and volun- 
 tary intention. The first depends upon the force of 
 representation and the sentiment which it excites. The 
 second is derived from reason because representation 
 is not of itself strong enough, its vigor being diminished 
 by the act of inhibition. Ribot, in "Les Maladies de 
 la Personalite, " regards will from the three points of 
 view: as the power of impulse, distinguished from the 
 anterior activities, because it is an ideomotive force; 
 as the power of inhibition, in which it stops motion 
 either by the creation of contrary impulses or by restrain- 
 ing the emotions, through fear; and as the form of 
 individual reaction expressing the intimate nature of the 
 subject. The principle cause of volition is not a conflict 
 of motives, but character. If this were not true, the men 
 richer in ideas would be the more irresolute. Character 
 is the psychical revelation of the organs and is partly 
 original and partly derivative. Now this theory is 
 identical with Spencer's because it is founded on the 
 principle of evolution and considers the voluntary phe- 
 nomena as cases of the incoherence between excitement 
 and action. But it includes an important correction of the 
 doctrine of the English philosopher, the recognition of 
 the necessity of a practical subject who chooses and from 
 whom volition emanates; an essentially active fact which 
 becomes passive if you conceive of it, as Spencer did, as 
 a result of a conflict of motives. A phenomenon so 
 various and complex as will cannot be explained by the 
 conception of a simple incoherence. For, thus, the greater 
 incoherence would make the greatest resoluteness out 
 of the greatest irresoluteness. In spite of the need of 
 activity revealed by Ribot, his will as a power of inhibi- 
 tion is passive, because it is a consequence of fear. 
 True active voluntary inhibition controls and arrests
 
 CHANCE A RESULT OF CAUSALITY 183 
 
 an impulse not through a prevalent emotion, but through 
 the dictates of knowledge and the development of reason. 
 In substance, Ribot confuses simple appetition with 
 will and then tries to form character independent of 
 the latter. Pathological experience, every day con- 
 tributing valuable data to the study of psychology, 
 shows us that where knowledge is lacking or is simply 
 a spectator, there can be no will; and that will decreases 
 in the same degree that knowledge is suspended or 
 inactive. Voluntary action is destroyed by lack of the 
 power to convert the force of impulse into the force of 
 ideation, and by transforming it into impulse. Examples 
 of the first kind of impotency are found in all the cases 
 of irresistible impulse, unconscious as the impulses of 
 epilepsy and hysteria, or conscious as the rare tendencies 
 to incendiarism, homicide, and theft. The most specific 
 case of impotency of the second kind is aboulia, in which 
 the mental faculties are sane, the mechanism of motion 
 intact, and yet the will of those attacked by this malady 
 cannot reach a determination except under intense pain. 
 81. Chance must be a Result of Causality. Will is 
 not the license of indifference or the power of the abso- 
 lute initiation of a series of acts. It is not determined 
 without motives. The principle of causality demands 
 a continuous series of antecedents and consequents and 
 applies the conception that similar causes and identical 
 conditions produce similar results. The license of in- 
 difference breaks the causal chain. It is an element 
 of discontinuity. It does not presuppose any ante- 
 cedents and is resolved into the absurd notion of the 
 possibility of several identical ' causes productive of 
 dissimilar results. To admit that the infinite progres- 
 sion of causes and results should stop at a causa sui does 
 not mean the recognition that the latter is determinate. 
 The causa sui may be internal and extrinsic necessity.
 
 184 PRACTICAL FOUNDATIONS 
 
 The fact of change does not in any way, even partially, 
 show an absolute beginning because the energies are pre- 
 served and persist, merely undergoing a transformation. 
 The heterogeneity of results does not show an indiffer- 
 ent power but rather the complexity of conditions and 
 causes which give it birth. The license of indifference 
 is casual and accidental will and because chance, philo- 
 sophically regarded, has a cause, casual will must have 
 one. Chance is not opposed to the laws of causality 
 but expresses a coincidence of facts whose casual series 
 set apart can be considered as independent. This is 
 the doctrine of the incidence of the series accepted by 
 many philosophers and explained by Windelband in 
 "Die Lehren vom Zufall." He writes that chance 
 cannot be possible, if growth forms a single chain in 
 which the links are necessarily joined. But, in fact, we 
 see a great number of threads developed which touch, 
 interlace, and cut into one another to form that marvel- 
 ous tissue which is called world progress. The points at 
 which threads touch, and where new threads constantly 
 unite with them, show us two facts that coincide in time 
 and space without having the relation of cause and 
 effect. Reasons are not lacking, according to Tocco's 
 "II Concetto del Caso in Aristotele," for holding that 
 such was approximately the opinion of the Stagirite. 
 Aristotle did not deny that every result must have its 
 cause, but held that the chain of causes is interrupted 
 by foreign events that are the product of distinct causes 
 and have no relation of causality with the first series. 
 The number of the causes of these accidentals are 
 indeterminate because the number of threads that can 
 affect or come into the causal chain of a series is inde- 
 terminable. Now if coincidence is a fact, like every 
 other fact, it should have a reason for existence. Coin- 
 cidences, therefore, cannot be removed from the juris-
 
 DEFINITION OF CHARACTER 185 
 
 diction of the laws of causality, and neither can the casual 
 will. It is repugnant to the mind to admit an empty 
 and indeterminate activity, a power of willing and not 
 willing, a will that wills itself. A profound observation 
 of Leibnitz is widely known; man does not will to will, 
 but wills to do, for if he wills to will he would will the will 
 to will, and so on forever. Knowledge cannot give 
 evidence of a power beyond the scope of action or of a 
 mere possibility. Such a possibility is inferred only 
 through ratiocination. Knowledge in its simplicity 
 embraces the subject and will, but the relation between 
 will and motive constitutes a deduction. Knowledge 
 gives evidence only that if there is a will to do a thing 
 the thing can be done, and goes no further. In a great 
 number of cases, it shows us the motives; and if some- 
 times it is not able to show them, that does not mean 
 that the motives are lacking. Advice, prayers, threats, 
 laws, promises, and agreements all act as motives, and 
 the desire to show one's own power over strong 
 motives or the opportunity and necessity of decision 
 when there is perplexity are often motives. The belief 
 in license arises from the fact that the cause-motive is a 
 thought not followed immediately by action and that 
 the action does not appear as equivalent to the intensity 
 of the cause; whence a certain incoherence, that is 
 believed to be absolute independence. On the other 
 hand, it is easy to disregard feeble desire or the fleeting 
 and weak solicitations on the part of the object 
 and accept an indeterminate power of the license of 
 indifference, which is fundamentally an immoral prin- 
 ciple because a will indifferent ,to motives is a will of 
 itself indifferent to good and evil. 
 
 82. Motive. Definition of Character. The will pre- 
 supposes a cause, or at least a motive. The external 
 cause modified by its excitability of the organism on
 
 186 PRACTICAL FOUNDATIONS 
 
 which it exercises its actions, determines the will. It 
 becomes motive when it has been represented by the 
 mind, in which case it has its virtue qua motive, that 
 is, not by what it is but by what it is represented to be, 
 that is, its reproduction in the mind. Psychical activity 
 begins with the transformation of causes into motives. 
 Every man forms his motives for himself since each 
 represents differently the external stimuli of which he 
 increases or decreases the energy. At first, there is 
 only isolated action; then there arises in the subject a 
 certain facility of renewing such action which, reacting 
 strongly, is called propensity. Propensity springs from 
 habit in one or more parts of the sphere of action 
 and thus characteristic lineaments and traits are created. 
 If characteristic traits are coordinated and subordinated 
 to a supreme will there is character. Whence it follows 
 that the activity of the mind, besides converting cause 
 into motive, raises motive to the importance of a law, 
 forms habit, and is the organic principle of all the coordi- 
 nate and subordinate volitions. Character differs from 
 nature, temperament, and idiosyncrasy, although such 
 terms are not foreign to it. Nature depends upon the 
 variable conditions of the organic systems and upon 
 the prevalence of one over other, for example, upon the 
 prevalence of the muscular system. Temperament is 
 the result of different dispositions of receptivity and 
 nervous spontaneity. Idiosyncrasy is reducible to con- 
 genital sympathy, antipathy, and apathy. The char- 
 acter is formed ; nature and temperament exist from birth. 
 Character appears in youth, the others belong to every 
 age. Character cannot be voluntarily formed. In fact, 
 there are many individuals without character, although 
 all have characteristic traits. Nature, temperament, 
 and idiosyncrasy are common to all. Character pre- 
 supposes spontaneity. The other terms presuppose
 
 DEFINITION OF CHARACTER 187 
 
 necessity. In character, all the natural elements depend- 
 ent upon the organism are found as well as the influences 
 of external circumstances of both a physical and moral 
 nature. There is much that is derived from our activity 
 that merely cooperates, or acts to transform or create 
 new power. The conception of motive is not contra- 
 dictory to that of free will, not synonymous with casual 
 will or license, since motive demands an act of intrinsic 
 conversion or full approval by the mind. Such an act 
 is a valuating judgment of the practical worth of the 
 cause, and the more it is extended and lengthened so 
 much more does responsibility increase. But what 
 emanates from our activity, which cooperates, trans- 
 forms, and creates, is the action of an entity not necessi- 
 tated to act, but which has nevertheless motives for 
 prompt action. On one hand, freedom, or free will, is 
 presented as a power of diverse and contrary parts under 
 which the conversion of cause into motive and the creation 
 of rules of conduct and the formation of habit can or 
 cannot take place. On the other hand, motives are not 
 lacking. In other words, it is necessary to keep the 
 notion of the necessitating force of motive and volition 
 entirely distinct and not to confuse appetition with will 
 and above all not to fall into indeterminism. If the 
 force of motive is one with that of will, there is necessity 
 and not freedom, and if appetition is controlled by 
 impulse there is no will. Holding that the subject 
 increases and diminishes the force of motive without 
 reason is to admit indeterminate and empty power. 
 Certainly, the will does not determine an action without 
 a motive, but the motive of a voluntary act is not con- 
 verted by itself into action, as Masci tells us, but is an 
 idea and thought, a valuing judgment. Ideas have the 
 least impulse and move by the causal energy of the subjcet, 
 hence the semblance of choice between several reasons
 
 188 PRACTICAL FOUNDATIONS 
 
 which are without impulsive force and indicate different 
 possibilities. Volition is the act of that energy accumu- 
 lated by reflection, judgment, and abstract ideation, and 
 is accompanied by a feeling of effort or tendency which a 
 latent activity, overcoming obstacles and expanding, has 
 for self-realization. The subject has not necessarily 
 acquired this energy since it is formed together with the 
 habit of will in periods of reflection or in the train of 
 practical tendencies in the state of independence of 
 impulse derived from the power of knowledge. Energy 
 is constituted little by little by that freedom which is 
 not a lack of motive but an autonomy of deliberation. 
 The subject is capable of predetermining its volitions 
 and preparing them from afar, increasing and not 
 diminishing its freedom, because the single acts, that 
 work together to give the constant direction of the will, 
 are autonomous. The greater coherence and, therefore, 
 the greater force of character is accompanied by a greater 
 imputability, so that if the prevalence of impulse is not 
 a natural phenomenon and a consequence of nature, 
 voluntarily acquired responsibility increases because 
 action is not so much the result of a momentary volition 
 as the product of a predeterminate and fixed will. 
 
 83. Chance and Statistics. The subject of the 
 regularity and constancy of moral facts which are the 
 result of the general permanent conditions of the social 
 organism gives this problem still another aspect. It 
 raises the question whether moral statistics can 
 harmonize the conception of the free will of man with 
 that of the general laws by which in every year of 
 a determinate period of the life of a people there is the 
 same number of crimes similar in complexity, in kind, 
 and even in method of execution, and the same pro- 
 portion between the acquittals and convictions, and 
 the same number of illegitimate births. We must
 
 CHANCE AND STATISTICS 189 
 
 reflect that the regularity of moral facts is neither 
 absolute nor equal to the immobility of external forces 
 but is relative and comprehends social and historical 
 causes capable of modification and susceptive of reform. 
 Neither is it the constancy of tellurgical and climato- 
 logical conditions that forces man and society, particu- 
 larly in civilization, to contribute in a given proportion 
 to the balance of crime, but it is the great complexity 
 of unaltered, intellectual, moral, and economic condi- 
 tions which brings about approximately the same num- 
 ber of crimes in a given period. We are very far from 
 constructing in the moral order those characters of true 
 stability and generality that exist in the physical order. 
 Such characters are easier found in matters that have 
 important physical and physiological elements, that is, in 
 the statistical doctrine of population and in anthropo- 
 metry. The school of Quetelet, with its mechanical and 
 astronomic tendencies, attempts to explain the constancy 
 of moral phenomena by relying more upon external 
 than internal relations, teaching that the necessity 
 of such phenomena is to be found in the complexity, 
 while the difference, the individual note, and freedom exist 
 in the men who compose the social essence. Drobisch 
 in "Die Moralische Statistik und die Menschliche 
 Willensfreiheit" proceeds in an inverse way and shows 
 that the constancy of moral statistics is not a fact, 
 although it is a product of causes capable of change; 
 that the average man represents the relation between 
 those who do something and others who do not; that the 
 habit of doing something from the point of view of 
 statistics depends upon the nature of man in general 
 and of the race, and upon the social conditions and the 
 character of the individual in particular. Habit produces 
 or does not produce an act depending upon the force 
 of the occasion of impulse, the degrees of resistance
 
 190 PRACTICAL FOUNDATIONS 
 
 derived from the predominance of reason and culture. 
 With a change in such conditions the constancy expressed 
 by the average would fail. Moral statistics cannot 
 answer the question of free will, he adds, because it is 
 not suited to the examination of psychological motives 
 of action although it can explain the proportions of 
 action. Oettingen in "Moral Statistik" treats of social 
 ethics on an empirical basis of this kind of statistics 
 and starts out with the conception of man as a free and 
 responsible being bound to society by infinite relations. 
 Oettingen sees in the regularity of social facts an immedi- 
 ate providential control. In this, he agrees with Suess- 
 milch, differing from Quetelet who believes only in 
 natural and physical law. But he does not admit the 
 religious predestination of the old theologians or the 
 mere license of the philosophers, but accepts the prin- 
 ciple of Lotze that freedom of will without a motive is 
 absurd. He believes that the more the moral life of 
 the individual interpenetrates that of society, the more 
 the consciousness of responsible existence will increase. 
 But Drobisch and the others are right in denying the 
 competency of moral statistics on this subject. The 
 question of free will is not properly an object of statistics 
 because it is referable to human activity which is con- 
 sidered by the entire group of moral sciences. Where- 
 ever the action of man is found, the essentially physio- 
 logical problem of freedom arises. It is as old as philos- 
 ophy and theology. Moral statistics study reality, the 
 determined extrinsic act of the will, as a unit, and not 
 as the possibility of the will, the subject of psychology. 
 Moral statistics can only deny license which is without 
 motive, because in human acts, impulses and motives 
 always arise, but it cannot deny free will. Those who 
 appeal to statistics to disprove free will, base the inter- 
 nal necessity of determination on the simple uniform-
 
 THE SUMMUM BONUM 191 
 
 ity shown by the average, going from the complex result 
 to the individual fact, while it is not right to confuse the 
 extrinsic conditions of phenomena with the phenomena 
 themselves. They think that the relative constancy of 
 the result excludes an indefinite variety of combina- 
 tion of the free elements and so the constancy is greater, 
 observed Cournot in "Exposition de la Theorie des 
 Chances et des Probabilites," when the elements have 
 freedom of position and independent movement, be- 
 cause, in that case, compensation between the possible 
 individual variations becomes fuller and more perfect. 
 It is necessary above all to define the nature of like 
 elements to come to a conclusion, and the definition 
 is not within the sphere of the social sciences and 
 statistics. 
 
 84. The Summum Bonum. Will is rational appetite 
 and tends as such to the end of man. The end of man 
 is his well-being, or happiness, says Aristotle, in which, 
 since man is a spiritual and organic subject, is included 
 well-doing and well-living, duty and pleasure. The 
 true human good in which lies the supreme end of 
 conduct demands the subordination of sentiment, pas- 
 sion, and interest to reason. So conceived, the good 
 is not confused with the mind freed from passion of 
 the Stoic, with the spirit hostile to the world of the 
 early Christians, or with the abstract formal will of 
 Kant, which is only autonomous when it wills per se and 
 proudly distances every alliance with the inclinations 
 of the senses; nor is it reducible to the mere pleasure of 
 the Epicureans or the interest of the Utilitarians. 
 Starting out with the idea of good which most conforms 
 to human nature, the sentiments and appetites are not 
 contradictory to moral will, but on the other hand, 
 constitute its concreteness. According to Bruno and 
 Spinoza, the good is properly a transformation of pas-
 
 192 PRACTICAL FOUNDATIONS 
 
 sionate movements into rational tendencies. The will 
 is effectively autonomous; it contains the sums of our 
 sentiments, emotions, and interests, and subjects them 
 to the control of the mind. On this condition only is 
 moral liberty obtained, which is realized by virtue or 
 the habit of doing the good. Aristotle makes virtue 
 consist in a measure of reason and in custom with advice 
 and deliberation, equally far from the excesses of too 
 much or too little, that is from hyperbole and ellipsis. 
 He says that it does not lie in passion, capacity, science, 
 or art. Passion is the sudden excitement of sentiment 
 depending largely upon the organic state or tempera- 
 ment and really deserving neither blame nor praise. 
 A capacity is given by nature, while virtue is acquired. 
 Science teaches us good and evil but virtue is the prac- 
 tice of the good. Art shows us the external part of action 
 but virtue puts a value on the intent. Virtue, he adds, 
 does not come from nature, that is, it is not a capacity; 
 nor is it without nature, but it should include all of man 
 and should not be placed in a particular part, even in 
 the most noble part of his being. Happiness, the good, the 
 supreme end, or virtue presuppose autarchy, that is, 
 the condition of self-sufficient man. He is not happy; 
 he does not attain his ends or the good; and he does 
 not become truly virtuous, when that sufficiency is lack- 
 ing. Autarchy is gained in society, in communion of 
 life, sentiment, and in discussion, common ideas, and 
 language. Man naturally tends to this and can be called 
 the political animal. Furthermore, says the Stagirite, 
 every common good keeps men bound together and urges 
 them towards social life. From this it can be inferred 
 that ethics are a part of politics, and that happiness and 
 virtue are not possible without social life. We moderns 
 express the same idea by saying that morality and the 
 subordination of interest to reason do not appear with-
 
 THE SUM MUM BONUM 193 
 
 out language, culture, custom, and education, which 
 imply the existence of society. The mind develops by 
 the aid of language, teaching, and culture, and the will 
 is effectively free when educated for the good. Man, 
 from a simple individual, develops into a moral subject 
 and person in civil communities, where he acquires a 
 full knowledge of himself and concrete independence. 
 So, in ethics, the primal activity of the mind is seen 
 because moral necessity is intrinsic in the idea of good 
 and cannot be the effect of organic need, custom, and 
 sentiment. Moral necessity is the human end freely 
 conceived. It is the mediate and reflected end of which 
 there is no trace in instinct and which can be born only 
 from the depths of the spirit as practical knowledge. 
 Nature gives us life and a tendency to preserve it. She 
 adds happiness as a purpose and shows us the advantages 
 of society, but the ethical necessity of these ends and 
 their universality are productions of thought, which gives 
 form to this sensible matter. It is true that organic 
 need, custom, and moral sentiment are antecedent, but 
 such things are not sufficient for the genetic explanation 
 of the conception of morality. It is certain that man 
 begins by following selfish and social impulses and 
 later he becomes accustomed to act so that his knowledge 
 is in accord with the knowledge of his fellow-beings 
 about that which it is well for him to do for the benefit 
 of his existence and of that of the others, approving and 
 disapproving actions according to some variable criterion 
 at first imposed upon him, but later transformed by him 
 into a universal principle, and qhanged by habit into a 
 duty; so that he is wont to act as he should because he 
 has discovered the ethical necessity of the tendency to 
 live and of the social sentiments and civil community 
 as Fiorentino said in the book cited. 1 
 
 1 "Lezioni di Filosofia," cit. 79, ante.
 
 194 PRACTICAL FOUNDATIONS 
 
 85. Morals and Law are Part of Ethics. Human 
 good, which is the unity of right doing and right 
 living or the subordination of the appetites and 
 interests to reason, presupposing as it does the common 
 life, is an object of ethics. Ethics, understood in this 
 broad sense, contain the universal determination and the 
 supreme principles of will and action. Morals and law 
 are parts of ethics because the good can be developed 
 largely in the intimacy of the relations of knowledge, 
 and can, on the other hand, be well shown in the external 
 relations between man and man, and man and things. 
 In the first case, the mind, says Vico, should act against 
 cupidity and construct ethical virtue or the sphere of 
 morals in order to preserve and increase its empire. In 
 the second, the mind becomes measure or proportion in 
 which it is necessary to divide the utilities equally among 
 men, and such is the idea of law. The matter of law is 
 utility ; the form or the measure is born from the depth 
 of the mind. At this point, there reappears in the high- 
 est degree the original, synthetic activity of the spirit, 
 which is found in feeling, representation, thought, and 
 appetite, and which is the base of man's personality. 
 The conception of Hegel is identical with that of Vico 
 because the conformity of the subjective to the objec- 
 tive will, which is the ethical act or freedom for Hegel, 
 as Spaventa showed in "Studi sull' Etica di Hegel," is 
 externally revealed as law or else internally explained 
 as the origin of morals. Law is the kingdom of external 
 liberty; morals are internal liberty. In this way, the 
 idea of law is found deductively starting from the 
 double series of theoretical and practical principles. 
 Such principles are essentially philosophical and connect 
 the philosophy of law with philosophy in general. They 
 are the foundations of science which show the supreme 
 rationale of justice understood in its proper sense.
 
 POSITIVE LAW MANDATORY 195 
 
 A juristic philosophy, independent of the two orders of 
 mother-ideas emphasized in this and the preceding chap- 
 ters, would not be a philosophy. It would be at most a 
 formal introduction to the study of positive law. It is 
 useful to keep constantly in mind that the philosophy of 
 law is, and necessarily must be, part of philosophy, no 
 matter how great a development of particular studies 
 it necessitates. 
 
 86. Positive Law is Mandatory and Inhibitive. 
 Now the measure or proportion of utilities, which is 
 law, imposes commands and prohibitions upon men. 
 Through commands it prescribes what should be done 
 so that the proportion may be obtained ; through pro- 
 hibitions it determines what it is necessary to abstain 
 from doing in order to attain the proportion. The 
 juristic imperative is in both positive and negative. 
 It demands respect from man, allowing him what is his 
 and prohibiting him from offense. The proportion of 
 utilities cannot be effected without the idea of individual 
 and social man and the principle of personality. Be- 
 tween the command and prohibition lies the zone of 
 the permissible, recognized by the exclusion, command, 
 and prohibition, and which does not consequently need 
 a formula of rational law. The possibility of a "lex per- 
 missa" is found in positive law, which removes a prohibi- 
 tion and allows a "jus singulare," or allows an action in 
 cases of doubtful legal right. The sentence of Modes- 
 tinus, therefore, " Legis virtus est imperare vetare per- 
 mittere," is referable to positive law and but to a limited 
 extent to philosophical law. When law commands or 
 prohibits in the last analysis, it merely assigns to a 
 person the determinate quality or quantity of rights 
 with which he can attain his essential ends. It estab- 
 lishes the ' ' suum necessarium ' ' of the person . What the 
 law neither commands nor prohibits is the complexity
 
 196 PRACTICAL FOUNDATIONS 
 
 of conditions and advantages not necessary to man. 
 Such complexity forms the sphere of the " suum non neces- 
 sarium." From this it follows that action is a question 
 of duty if it is connected with a law that commands or 
 prohibits, and whoever finds himself in the ethico-juristi- 
 cal necessity of fulfilling it, can have a reasonable 
 expectation of not being disturbed in carrying out his 
 obligation. It is in this sense of law as the norm that the 
 first juristic duty is derived, and later comes law as a 
 faculty or power. But action is purely facultative if 
 it is considered in relation to legal permission. 
 Under this aspect, therefore, law has its origin in the 
 power of doing something perhaps not juristically 
 obligatory but merely convenient, and then comes the 
 duty or the necessity of respecting another's rights. It 
 can be easily understood that he who thinks it convenient 
 to do something should not offend the laws of ethics, of 
 which law is a part. Neither is it difficult to understand 
 that this theory refers to juristic duty and law as a 
 facultas agendi, and not to moral duty, which is always 
 based on the supposed justice in the object and has 
 no correlative in the rights of others. If it has, it be- 
 comes juristic. It is possible that an act juristically 
 facultative is morally obligatory, because we can point out 
 that in such a hypothesis it is a question of the preced- 
 ence of moral and not juristic duty. It follows as a con- 
 sequence of what we have said, that law in the subjective 
 sense is not all reducible to the permissive, as Rosmini 
 and Seydel in his "Ethik" thought. The first defines 
 it as the faculty of doing what is pleasant, protected by 
 moral laws, provided it does not hurt another. But 
 often arightis the legitimate claim to do what is necessary 
 for human nature. In the series of the higher relations, 
 the connection between juristic rights and duties is 
 more rigorous. In it, it is seen that a faculty belongs
 
 COERCIVE AND HARMONIOUS 197 
 
 to a person to exactly the extent that he has a duty 
 to fulfill it. The exercise of a public function, for 
 example, constitutes the right of authority, but it is 
 first a duty. Secondly, as the series of relations descends 
 and approaches the sphere of the permissible, the con- 
 nection becomes less stringent and finally disappears. 
 The individual has certain rights of a family nature 
 which do not presuppose precedent juristic duties, 
 although they can be connected with moral duties. 
 
 87. Law is Coercive and Harmonious. If law is 
 the good which can be realized in the external relations 
 between man and man, and man and things, it is logically 
 inferable that it contains potential coercion, and that 
 it is the principle of coexistence and harmony of life. 
 The exteriority of the relations implies action; both 
 render physical and psychological coercion possible; 
 that is, physical force and intimidation. Coercion is 
 the means for enforcing the law against recalcitrant 
 wills. It is the victorious manifestation of the law. 
 Force, put in the service of the law, loses its blind and 
 brutal attributes, and develops into an ethical power. 
 The spectacle of the triumph of justice through coercion 
 can in no wise be likened to a spectacle of natural forces 
 set loose, because it is the ethical power ruling in 
 the world of free essence, as Schelling says, before which 
 the very activities of nature give way. It is customary 
 to picture justice with scales and a sword. The scales 
 without the sword are powerless; the sword without 
 the scales are violence. It can be shown that law is 
 the principle of coexistence and harmony by reflecting 
 that if each is given his own, there can be no lasting 
 motive for discord and war. The friendship of the parts 
 of the great social whole is to be preserved by realizing 
 the proportion of advantages. Moral well-being is the 
 only basis of constant friendship. Justice is the true
 
 198 PRACTICAL FOUNDATIONS 
 
 magnet in civil life. Aristotle reached the same conclu- 
 sion starting with another idea, that of the impossibility 
 of picturing virtue without the common life. He speaks 
 of the individual virtues; for example, temperance, 
 bravery, and prudence; but in these he sees merely a 
 commingling of appetites and reason. According to him, 
 justice contains all the other virtues and is the chief 
 fundamental of ethics, because it shows more clearly 
 than the others the demands of common life. Everyone 
 can be brave, prudent, and temperate if he take no care 
 for his fellows, but on the other hand nobody can be 
 just, except in society. Now society is derived from 
 need, because the individual is not self-sufficient; need 
 is conducive to reciprocity of service and to the exchange 
 of acts and things. Inter-exchange demands equality, 
 and this equality is justice in its original form. Common 
 life, therefore, the essential condition of virtue and moral- 
 ity, cannot be sustained without justice, which, however, 
 is but complete virtue. Rosmini tries to eliminate from 
 the definition of law the conception of society and even 
 that of real coexistence, but he cannot get away from the 
 notion of a possible coexistence, so intrinsic is the union 
 of the idea of the coexistence of men with justice. 
 "Let us hold," he said, "that the idea of law would 
 exist if there were but a single individual of the human 
 species"; then he goes on to consider him in a hypo- 
 thetical relation with other possible individuals. With- 
 out doubt, possible coexistence is a supreme abstraction 
 beyond which we cannot go without renouncing all 
 attempts to understand law. But the ideas of moral 
 well-being, virtue, and law presuppose common life, 
 understood in its integrity; that is, civil community and 
 real coexistence in which alone self-knowledge and true 
 liberty, with their innumerable physical, intellectual, and 
 moral subsidiaries, accumulated by the collective activ-
 
 LAW SUBJECT TO EVOLUTION 199 
 
 ity, are acquired. In other words, concrete and active 
 common life is necessary for the development of ethics. 
 Rosmini puts aside the conception of possible coexist- 
 ence, and has recourse to that of society and real co- 
 existence in his definition of the law as the personal 
 activity or the activity of the subject, master of his 
 acts, because this mastery over one's acts is only de- 
 veloped in full self-knowledge and freedom. 
 
 88. Law is Subject to Evolution. To conceive of law 
 as the principle of coexistence and harmony of life is 
 equivalent to regarding it as an organic principle and, 
 therefore, to subjecting it to the general laws of evolu- 
 tion which all organisms obey. Evolution means the 
 development of new attributes and the increasing division 
 of functions together with a progressive autonomy of 
 parts, a complication of forms always more distinct and 
 coherent with more perfect qualifications. Law follows 
 evolution because it comprehends an always increasing 
 number of relations, that in time become better dis- 
 tinguished, at first formed by sense, then by phantasy, 
 and finally by reason. Law grows progressive and 
 struggles to conquer the resistance which it meets in 
 its path; "Jus autum majorum gentium," says Vico, 
 "est jus privatse violentiae"; which has attended the 
 existence of the struggle in law from its very beginning. 
 To Ihering we owe a theory about the struggles of law 
 that is not without importance. "Law," he writes, 
 "is like Saturn who devours his own children, because it 
 creates and then destroys statutes, institutious, and in- 
 terests." It looks to preserve its actual form by force 
 reinforcing itself against civil wrong and crime. So the 
 manifestations of the law, as norms, do not escape 
 the struggle, because habit is not established without 
 conquering obstacles. Jurisprudence advances among 
 the disparities of beliefs and the contradiction of decrees ;
 
 200 PRACTICAL FOUNDATIONS 
 
 and the statutes of our day can well be considered the 
 result of parliamentary battles. Ihering stops to con- 
 sider the struggle for rights subjectively understood. 
 The struggle for rights should be inspired by the feeling 
 of wounded personality, and not by economic interest 
 alone, about which it is reasonable to compromise, unless 
 there is a wound to the personality. In the defense of 
 one's rights, all the ethical conditions of life take part 
 and, therefore, the struggle constitutes a duty on the 
 part of the person towards himself. The struggle is 
 also a duty of the individual towards society, by keeping 
 whole and safe, by his resistance, the vigor of the law, and 
 hindering it from becoming ineffectual. The State has 
 its most ample source of strength in the sane and vig- 
 orous juristic sentiment of individuals, because only 
 those who have had the courage to struggle bravely 
 for their rights and the protection of their personality, 
 are in a position to feel the sentiments of patriotism or 
 take an active part in the civil concerns when the national 
 dignity is offended. 
 
 89. The Laws of Evolution Show the Course of the 
 Development of Law. The laws of evolution, to which 
 law is subject, give us the principle or criterion of its 
 logical division, and it seems indubitable that the first 
 forms of law must have been the most simple and 
 abstract, that is, the least complicated. They included 
 the relations of private law, since members of the 
 social order strive for the attainment of their particular 
 ends by means of voluntary acts. Less simple and 
 abstract are the relations of public law which embrace 
 the relations arising from the realization of universal 
 ends through an ordered power, in which the individ- 
 uals take part as citizens and not as private men. And 
 still more complex are the forms of international law 
 which presuppose the coexistence of countries and the
 
 PRIVATE AND PUBLIC LAW 201 
 
 great principle of the humanity of nations, of which 
 Vico wrote. The evolution of law is parallel and to a 
 certain extent identical with that of personality, (for 
 it first is singular, then collective and political, and finally 
 international,) since the idea of personality is the essen- 
 tial principle of law. 
 
 90. Distinction between Private and Public Law. 
 As to the distinction between private and public law 
 we must say that outside of the criterion of the nature 
 of their respective ends and means, alluded to in the last 
 paragraph, first pointed by Ahrens and later by Del 
 Giudice in "Enciclopedia Juridica," there is no other ac- 
 ceptable criterion because it can only lie either in the 
 subject of the relation or the means of its enforcement. 
 If the difference lies in the individual or political subject, 
 the logical consequence is that moral entities, at whose 
 head is the State, would not be able in any way to 
 enter private law, while in many cases they are in con- 
 ventional relations with individuals and act as private 
 subjects as far as their peculiar nature will allow them. 
 If it lies in the action, and the relation protected by a 
 private action is private, and the relation protected by a 
 public action is public, we have a very extrinsic criterion, 
 that is, the method of giving the law strength that would 
 not be in itself private or public before thinking out the 
 means of effectuating it. The particular and universal 
 ends which we have emphasized are not foreign to the 
 Roman definition of private and public law, the former 
 founded on private, the latter on public utility. Private 
 or general, the utility is always included by the principle 
 of the purpose or the teleological criterion which rules in 
 the human world. It is not possible to reduce the scope 
 of private law to a reasonable control over a true and 
 proper utility, because public law has the same object. 
 The right, which is obtained by a proportionate equali-
 
 202 PRACTICAL FOUNDATIONS 
 
 zation or the imposition of a tax, looks to a true utility 
 as well as a right of property, legal servitude or obliga- 
 tion. The utility, which is the exclusive matter of 
 private law, has essentially to do with rights of a finan- 
 cial value. It gives the special characteristic to the 
 juristic relation whether the subject is a private person, 
 a moral entity, or a State. The right of a citizen, for 
 example, to the restitution of tax unjustly paid, is 
 ' private, as is the right of the State to have the price of 
 something that is sold or leased, because in both cases 
 it is a question of a utility of financial value. The 
 electoral right, liberty of conscience, and the right of 
 the State to demand tribute are not private rights and 
 do not include financial utilities, but are advantages or 
 utilities in a broad sense. This is the theory of Gabba, 
 who points out that the error of believing that private 
 rights are derived only from voluntary and contractual 
 acts. It is born of such acts, but it has its origin as well 
 in unilateral licit and illicit acts and even in public law. 
 Harm once done, even if extra-contractual, there is gen- 
 erated in him who suffers it a private right; the obliga- 
 tion of indemnity, which binds the State in the case of 
 appropriation for public utilities, is correlative with the 
 private or financial right of him who is deprived of his 
 goods. 
 
 91. Individual and Social Man are Intimately Inter- 
 penetrant. Certain it is that in private law the particular 
 will is dominant, whence itsspherelies within the bounds 
 of the "jus voluntarium," but it should not be believed 
 that the "utilitas singulorum" is exclusive and egoistical, 
 because man lives in society, and consequently his will 
 is limited by the general will and his interest is tempered 
 by the interest of all. On the contrary, the general will 
 is imperative in public law. It is a "jus cogens"and not 
 susceptible to modifications through particular agree-
 
 LAW IS HISTORICAL 203 
 
 ments. The maxim, "Jure suouti nemo cogitur," isappli- 
 cable to private law. In public law, on the other hand, 
 the principle that he who has a faculty to exercise is in 
 duty bound to use it, is rigorous. The two maxims, 
 however, are not in all cases exact because in private 
 law, for example, there is guardianship, which is a social 
 office, "munus publicum," and in public law there is no 
 obligation to exercise of the right of suffrage. In fact, 
 there are no mathematically fixed boundaries between 
 private and public law, since the development of law 
 includes all men, the individual, and society. The 
 private person in the concrete is inseparable from 
 the collective person. 
 
 92. Law is Historical. There are various opin- 
 ions about the methods of sequence in private and 
 public law. Stoerk notes that the method in the 
 two branches of law cannot be separated from the 
 nature of the mind of the legislator and from a coordin- 
 ation of ideas through the categorical characteristics 
 of subject, object, and acquisition, exercise, and loss 
 of rights. In private law, however, the formal element, 
 the generalizing activity and methodical process which 
 consists in connecting juristic principles with human na- 
 ture prevails, since the private relations are very simple 
 and typical. In public law, on the other hand, the his- 
 torical element has a large development; variability is 
 dominant and, therefore, the systematization of the 
 logico-dogmatical element is less important than the 
 search for facts, and takes secondary place. Laband 
 writes that the method of civil law is strong in maxims 
 and that they have less importance in public law. We 
 must first give a preliminary explanation to the concep- 
 tions of civil law, because it is necessary to eliminate 
 from it all the specific elements and traits peculiar to 
 private law. Now, looking closely at the two opinions
 
 204 PRACTICAL FOUNDATIONS 
 
 and putting aside the notions that are exclusively 
 referable to positive law and its technical construction, 
 we must remember that law, be it private, public, or 
 international, is always a human idea, that is, an ideal 
 principle which develops in history, and that it does not 
 consist in a mere logical construction. We must look 
 upon it as a real and living formation. It is always 
 based on human nature, in that it is explained in all the 
 wealth of its attitudes and forms throughout the lives 
 of nations which constitute the panorama of history. 
 It is not possible, therefore, to dissociate the rational 
 from the historical element in the treatment of law. 
 If, in private law, the generalizing activity is more 
 developed and the formal part is more worked out, 
 that does not mean that this branch of law is not an his- 
 torical formation, but only that the relations of which 
 it takes account are not as complex and variable as 
 those of public law. If we admit that the relations 
 of private law are less complex and variable, the 
 prevalence of the formal element should cause us no 
 surprise. On the other hand, public law presupposes 
 more elevated, comprehensive, immutable relations, and 
 it is, therefore, evident that the formal element and the 
 generalizing activity should be less marked, although 
 such relations are also based on the common principle 
 of human nature. If the relations of public law are 
 more elevated and contain new elements, the simple 
 conceptions of private law have not much weight in 
 public law. Their expurgation should follow the move- 
 ment of real evolution by being definite and complete. 
 In other words, there should be a transformation. 
 Their expurgation is thus the subtraction of what has 
 lost its value and the addition of something that is new. 
 Civil law has been active in such a work and has been 
 profoundly altered.
 
 CATEGORIES OF PRIVATE LAW 205 
 
 93. The Five Categories of Private Law. The law 
 of evolution is observable in the categories of rela- 
 tions understood in indicated general forms. Every 
 juristic relation demands a subject and an object. 
 Man is the subject, the person, the subject of rights 
 and duties. By the necessity of his nature he is urged 
 to bend external things to his will, and to bind himself 
 to his fellows in order to establish a reciprocal and con- 
 tinual interchange of necessary and useful objects. By 
 his nature, too, he is fitted to realize his personality in the 
 family which in its development gives place to inherit- 
 ance. From this it follows that there are five categories 
 in private law: the law of personality, the property law, 
 the law of obligation, the law of family, and the law 
 of inheritance. It is evident that the idea of inherit- 
 ance is founded on that of the family, which in its turn 
 is founded on the idea of an activity developing over 
 things or in inter-personal relations ; an activity which is 
 referable to the principle of the person in himself, the 
 beginning and base of every system of juristic relations. 
 
 94. Civil and Commercial Law. Private law is 
 civil and commercial. Commercial law is a form of 
 private law that is properly connected with right 
 of obligation, because its relations comprehend particu- 
 lar objects and means derived from the will of indi- 
 viduals in harmony with collective ends. Commercial 
 law is needed because of the principles of civil life 
 and special rules of trade to give facility, promptness, 
 and security in commercial relations. It is special and 
 not exceptional or privileged, applying to all acts of 
 trade and to all merchants. 
 
 95. Public Law. The family is the cellule of 
 the State, the high and perfect human communion. 
 Now we will first show the fundamental structure of 
 the State and then its functions, its administration,
 
 206 PRACTICAL FOUNDATIONS 
 
 or that action which more especially is taken over 
 by the executive power and the government. It is 
 the duty of the State to enforce the law against 
 every act tending to violate its precepts. It is like- 
 wise its duty to determine the procedure, to declare 
 the law in the interest of two contending parties, and to 
 punish its infringement in the interest of society. From 
 this it can be seen that the categories of public law, in 
 the wide sense, are constitutional, administrative, penal, 
 and judicial or procedural law. In a strict sense, 
 public law contains the constitution and administration 
 of the State. The law of procedure presupposes private 
 law, public law, and penal law and is, therefore, the most 
 complex. Penal law presupposes the organization of 
 the State and all the statutes whose violation it regards. 
 Administrative law is to constitutional law as func- 
 tion is to structure; but the most simple relations of 
 public law are constitutional. This does not mean that 
 no regard is paid to functions in constitutional theories. 
 There are functions in such theories, but they are politi- 
 cal. When it is said that constitutional law has for its 
 object the structure of the State, while the administra- 
 tive regards its functions, the structure is not excluded 
 from the administration, but in a general way the con- 
 stitutional law is made predominant statically, while 
 administrative law is more dynamic. 
 
 96. International Law. In general, international 
 law controls interstate relations, or the relations be- 
 tween the citizens of one State and those of another, 
 dividing itself thus into public and private law. 
 Public international law embraces the categories of 
 international persons, their possessions, obligations, 
 and actions. The right of action is one with the 
 right of war which includes the subjects of debate 
 between States and the methods of eliminating and
 
 GAIUS AND JUSTINIAN 207 
 
 resolving them, together with the rights of neutrality 
 and peace. At this point, we may notice the progress 
 from what is less complex to that which is more complex, 
 because war presupposes the normal condition of peace, 
 the existence of rights of property and obligation between 
 different States founded upon their personality. Private 
 international law follows logically public international 
 law, because the relations of individuals belonging to 
 different nations are based on the highest principles of 
 the common natures of the peoples, their coexistence 
 and solidarity. It cannot be believed that private inter- 
 national law should exist prior to public international law 
 for the same reasons which prove the antecedence of 
 private law to public law. Yet we cannot admit the 
 similarity of international private law with private law 
 in an absolute sense; that is, allow international private 
 law to antedate national public law. Private law is 
 essentially domestic. It is enacted by the legislators 
 of each State, while international private law is foreign. 
 One is actuated by the general will of the people; the 
 other demands the express or tacit consent of another 
 people for its application. Private law varies with 
 diverse national consciousness ; private international law 
 tends to establish identical norms for the decision of 
 contests about the applicability of statutes or laws 
 foreign to the nation. 
 
 97. The Tri-division of Gains and Justinian. A 
 last observation on the tri-division of private law made 
 by Gaius and emphasized by Justinian: "Omne jus 
 quo utimur vel ad personas vel ad' res vel ad actiones per- 
 tinet." It has been many times pointed out that this 
 is of no rational value, because it is not based upon the 
 essential character of juridical relations and has the 
 vice of including the family relations in the personal 
 rights, inheritance in the property rights, and procedure
 
 208 PRACTICAL FOUNDATIONS 
 
 in the law of actions. The tri-division, however, has 
 no small historical value in relation to the legal divi- 
 sions of the sources antedating the Institutes. The 
 First Table of the Decemvirs has a certain number of 
 rules of procedure, "De in jus vocando." The Pretorian 
 Edicts begin with a title on the same subject, " De 
 actione danda." The Digest begins with some general 
 propositions of law and then furnishes the nomenclature 
 and description of divers imperial officers with jurisdic- 
 tion, coming thus to the fourth title of the second book 
 with the same subject as the first table of the decem- 
 virs, " De in jus vocando." As can be seen the sources 
 begin where the tri-division of Gaius and Justinian ends. 
 Maine in his book already mentioned 1 pursues the simi- 
 larities between these and the monuments of primitive 
 law and shows the great similarity on this point, because 
 the "Lex Salica" begins speaking of citations and exhibits 
 in a court of justice. The Irish law is marked by the 
 extraordinarily large part devoted to procedure whose 
 principle is the original act of giving jurisdiction 
 through agreement, by transcribing it before a judge. 
 The codes of Manu and Nerada speak first of the 
 judges and procedure and only later of law and the 
 matters which can be the subject of litigation. It cannot 
 be doubted that in the beginning the constitution of 
 the judicature and procedure were things of capital im- 
 portance, because it was necessary to establish custom in 
 order to bring men to obedience and to form the fibres 
 of a legal sense. The idea of punishment and the judge 
 had great effect upon the consciousness of peoples at the 
 dawn of civilization. When the habit of obedience was 
 once formed, the control of law established, the social 
 company gotten together, the mind developed, the 
 idea of punishment and the judge became addictions, 
 
 l Cf. "Early Law and Customs." cit. 39.
 
 GAIUS AND JUSTINIAN 209 
 
 as Bentham would say, to the paragon of juridical rela- 
 tions per se, a great sustainer of substantive law. The 
 tri-division of Gaius represents this second phase and 
 shows an idealistic progress over the old legal order.
 
 210 ANALYSIS OF DEFINITIONS 
 
 CHAPTER VII 
 
 CRITICAL ANALYSIS OF THE PRINCIPAL 
 DEFINITIONS OF THE LAW 
 
 THE DOCTRINES THAT GIVE PREFERENCE TO THE SENSIBLE 
 CONTENT OF LAW: HOBBES, SPINOZA. ROUSSEAU, STUART MILL 
 AND SPENCER. THE DOCTRINES THAT CONSIDER LAW AS AN 
 ABSTRACT RATIONAL FORM: KANT, FICHTE, AND HERBART. 
 THE DEFINITIONS OF KRAUSE AND OF TRENDELEN BURG. THE 
 TRUTH OF THE DOCTRINES EXAMINED. 
 
 98. Two Kinds of Definitions. The principal phys- 
 iological definitions of law have reference either to its 
 sensible content or its rational form. Among the first 
 we must place the definitions of Hobbes, Spinoza, 
 Rousseau, the utilitarians, and the positivists; among 
 the second, those of Kant and Herbart. 1 All these 
 definitions show but one factor characteristic of the 
 idea of the law fully understood. 
 
 99. Hobbes s Definition of the Law. Hobbes, fol- 
 lowing Bacon, states that there can be nothing except 
 matter and motion; and that thought is exchangeable 
 with feeling; and that the phenomena of our internal 
 economy are explicable by the laws of association. 
 His ethical concept, developed in "De Cive" and "The 
 Leviathan," relies upon the tendency of self-preservation 
 as the basis of the duties of justice, gratitude, and 
 piety; by the fulfillment of which duties the general 
 struggle of man against man is avoided. In the state 
 of nature, when everyone had a right to everything, and 
 
 l Cf. 111 infra.
 
 SPINOZA'S DEFINITION 211 
 
 therefore there was a general struggle of man against 
 man, force was the method of decision. In this state 
 there were no duties because there was no certainty 
 of reciprocity. Limitless fear, the tendency to self- 
 preservation, and the need for the protection of honor, 
 forced man to a fundamental agreement out of which 
 arose an absolute power to determine the honest and 
 just, which was later given sanction through religious 
 beliefs. Law, therefore, according to Hobbes, is not 
 in itself an ethical principle but an external means, like 
 ethics, for the termination of the terrible war in which 
 all men were engaged. In the last analysis, it brings 
 back the thought of Thrasimachus, who reduced justice 
 to the power of the strongest without understanding its 
 true value or moral nature. Plato opposed Thrasimachus 
 and showed that power per se is brought into play to 
 defend the weak, giving as an example the power of 
 the doctor over his patient and the captain over those 
 who are on his ship. Although the theory of Hobbes 
 shows a certain high character in emphasizing the pro- 
 tection of honor, yet it establishes the predominance of 
 instinct aided by calculation in ethics, and derives law 
 from the mind oppressed by passion, endeavoring to 
 build up a legal union through the blind influences of 
 weakness or fear. Surely law should not be weak, 
 mere scales without the sword. It should have force; 
 which does not lead us to believe that its essence is 
 cowardly intimidation. Hobbes deserves credit, how- 
 ever, for having put in evidence the side of law which 
 refers to the protection of the ethical and social elements 
 of human nature. 
 
 100. Spinoza's Definition of Law. The definition 
 of Spinoza, given in his "Ethica Ordine Geometrico 
 Demonstrata," and the "Tractatus Theologico-Politi- 
 cus," approaches on one side very closely to Hobbes 's
 
 212 ANALYSIS OF DEFINITIONS 
 
 theory. Thought and extension are unified by Spinoza 
 in one indifferent and active point in substance, as 
 the "causa sui;" he holds that all develops in these 
 two infinite attributes and distinguishes them from the 
 universe or "natura naturata," whose particular objects 
 are simple methods and objects of imagination. Sub- 
 stance is God. Substance is absolute and cannot be 
 determined by anything except itself and is, therefore, 
 free. God alone is free, and not man, who does not 
 exist through the exclusive necessity of his nature, but 
 is a method and as such is limited and determined by 
 other methods. Man is a natural force with the illusion 
 of freedom. Passion, desire, and appetite rule his actions. 
 Law is not born of reason, but of appetite. Law is the 
 power of the nature of man, a force similar to that by 
 which everything exists and perseveres in its existence. 
 The power of nature is the same as the law of nature. God 
 can do everything and has right over everything. In 
 the human struggle, growing out of the passions, the 
 power of one man is neutralized by that of another and 
 in this way is annulled , and there is no security. The union 
 arises from the need of saving one's own power which 
 increases in the union itself as the right increases. The 
 State, the greatest union, appears omnipotent and tends 
 to guarantee secure coexistence. So in this theory 
 law is not an ethical principle but grows out of the 
 tendency of self-preservation acting through force, 
 mechanical causality, and natural power, aided by agree- 
 ment. Here, too, the State is an absolute empire with 
 the object of ending the struggle of men divided by 
 cupidity and passion. Natural power, as such, cannot 
 be law, although it can accompany it in its development 
 and render it efficacious, especially if aided by agreement. 
 Law gains strength in its concreteness when realized in a 
 union, "vis unita fortior," but Spinoza, although self-
 
 ROUSSEAU'S DEFINITION 213 
 
 contradictory, gives some conceptions which correct the 
 doctrine before emphasized and fully conform to the 
 truth. It is only just to give them and to notice them 
 as De Tullio did in "II Concetto del Diritto Secondo 
 Spinoza," because they represent precious germs of 
 truth. If, on one hand, Spinoza denies the freedom of 
 man, on the other he is constrained to admit it, because 
 man is body and mind, and as mind is not destructible, 
 participating in the eternity of substance, referring all 
 things to God, and thinking them in Him. He is cap- 
 able of controlling his passions, desires, and appetites, 
 and approaches nearer to God the more he extends his 
 control over them and raises and purifies his will. At this 
 point man attains his end; his "acquiescentia" and his 
 will are free as those of God. "Hinc sequitur quod 
 Deus quatenus seipsum amat homines amat et conse- 
 quenter quod amor Dei erga homines et mentis erga 
 Deum amor intellectualis unum et idem est." The 
 same conception of the freedom of the soul and of its 
 union with God is developed by Bruno in "Eroici 
 Furori." Law, in this new phase of Spinoza's thought, 
 is not a natural and mechanical power but a "potentia" 
 by which man approaches his rational end, which end is 
 attainable in the common life and the State, which is a 
 communion founded on reason. "Animorum unio con- 
 cipi nulla ratione posset nisi civitas id ipsum maxime 
 intendat quod sana ratio omnibus hominibus utile esse 
 docet." Spinoza adds, "finis ergo rei publicse revera 
 libertas est." 
 
 101. Rousseau's Definition of Law. Rousseau, in 
 "Le Contrat Social," starts out with the principle of 
 inalienable liberty. With such a principle he resolves 
 the problem of finding a kind of political union in which 
 freedom is not alienable and each man in obeying 
 the State obeys himself with a complete and recipro-
 
 214 ANALYSIS OF DEFINITIONS 
 
 cal renunciation of all individual rights in favor of the 
 community; whence the general will to which the will 
 of all or the particular wills are subjected by free 
 agreement, and the inalienable, indivisible, and non- 
 representative sovereignty are formed. The general 
 will manifested by the majority of votes is the source 
 of law, and therefore law is reducible to the decision 
 of the majority. Now the general will of Rousseau not 
 being intrinsically connected with reason, the supreme 
 ethical idea becomes license or the pleasure of the mob, 
 very different from that constant measure or proportion 
 of advantages, founded on the moral nature of man, 
 which is law. Under this aspect, Rousseau's definition 
 has to do with the sensible content of the law. What is 
 true in this definition is that the "reipublicse sponsio," 
 as the Romans say, when they declare the conception 
 of the law or the will of the greater number, is the con- 
 crete and effective expression of the law in the life of 
 the people. 
 
 102. The Utilitarian Definition of Law. The 
 Sophists, Eudoxus, Epicurus, Helvetius, Bentham, and 
 Stuart Mill are the greatest representatives of utili- 
 tarianism. They try to find moral truths and justice in 
 pleasure and pain and to reach the general interest by 
 starting out with particular interests. Hobbes and 
 Locke showed the same tendencies although they are 
 not usually cited as utilitarian philosophers. It is to 
 Stuart Mill that we owe a truly scientific exposition of 
 this system which he adopted. He denies in his book 
 "Utilitarianism" that morality is based on rational and 
 a priori elements, and follows the empirical and induc- 
 tive theory, based on the sense of pleasure. When this 
 is generalized, it constitutes the idea of utility; the only 
 object which experience adds to conduct is happiness, or 
 an existence free from pain and rich in enjoyments
 
 UTILITARIAN DEFINITION 215 
 
 both qualitatively and quantitatively. The proof of 
 the quality of enjoyments and the measure of their 
 quantity are found in the preference given by those 
 who, through opportunity and their own aptitude, are 
 best furnished with means of comparison. Happiness 
 is the true and only good. Virtue itself is first desired 
 as a means of happiness and then is desired on its own 
 account, in the same way that man begins by doing a 
 kindness to his fellow-being for recompense but later 
 goes on through habit. Complete happiness, however, 
 cannot be attained except by the accord of private and 
 public interest. Individual utility cannot be developed 
 largely or securely without the aid of one's fellow- 
 beings, without the help of all. General utility is the 
 condition necessary for the development of the private 
 utility, and is at the same time its protection. From 
 this comes the distinction of good and bad actions, 
 depending on whether they promote or oppose the 
 happiness of all. This knowledge grows gradually, and 
 in the same way moral sentiment makes its appearance, 
 whose elements are the instinctive desire to live in har- 
 mony with one's fellow-beings, the conception of human 
 solidarity and of the impossibility of an egoistic state, 
 the habit of cooperation with others, and the influence 
 of civilization. In civilization are found the principle 
 of obligation and the basis of natural law. The idea of 
 utility is not contradictory to that of justice, but the 
 latter is part of the first. The etymology of the word 
 justice, "jussum," shows that the genesis of such a notion 
 is legislative prescription. The idea of a legal consti- 
 tution precedes the idea of the just, whose content 
 is the most stringent and imperative utility. It is true, 
 therefore, that all cases of justice are cases of utility, 
 but that the most impellent of them are those that are 
 derived from the needs of man. The idea of justice
 
 216 ANALYSIS OF DEFINITIONS 
 
 includes three ideas, those of a certain conventionality 
 of action, of law which punishes unconventional actions, 
 and of a right given and protected by law to certain 
 persons with a penalty for its violation. To this idea 
 of justice, there corresponds a complex sentiment, the 
 resultant of the impulse of self-defense and the tendency 
 to sympathy. The first impulse gives rise to resentment 
 for an offence offered us, the second causes a resentment 
 for offences offered to others. We want the offender 
 himself to suffer the harm that he has caused. Such 
 sentiments, together with the three ideas, determine the 
 penal restrictions of actions not conforming to general 
 and particular utility. 
 
 103. Criticism of Stuart Mill's Definition. The 
 radical vice of this theory consists in deriving in logic 
 everything by induction and in ethics everything from 
 custom. It is well known that induction does not ex- 
 plain the necessity or universality of theoretical prin- 
 ciples, and that habit is always a mechanical and 
 unconscious conjunction of acts and cannot be pro- 
 ductive of duty or ethical necessity. The pursuit of 
 virtue for itself, disinterestedness and sacrifice, are in 
 Stuart Mill's mind the result of mental habits. An 
 obligation is the result of the continuous and energetic 
 association of all the elements that compose moral 
 sentiment. The accord between one's own advantage 
 and that of another and of all, is the result of the same 
 cause. The exclusive principle of ethics is the internal 
 association of mental states, unaccompanied by intrin- 
 sic bonds of reason and regulated only by tendency 
 to pleasure and aversion to pain. In fact, such spiritual 
 enjoyments, as knowledge, freedom, and independence, 
 are not desired for their substantial advantage but for 
 their emotional force and likelihood of increasing one's 
 pleasures. It seems that the preference of such advan-
 
 CRITICISM OF MILL'S DEFINITION 217 
 
 tages is for Stuart Mill a question of taste, which can 
 be decided only by persons who have special experience 
 in all kinds of enjoyment. We may note that mental 
 activities, cultivated for the enjoyment which they 
 bring, can be corrupted because one is led to think too 
 much, since thought brings pleasure. It is necessary, 
 however, to remember that Mill says clearly in places 
 that the reason of the preference lies in the idea or 
 sentiment of human dignity; that all men are able to 
 appreciate and value these advantages, if they think. 
 By such a confession, Mill leaves his system and 
 shows an incoherence in introducing a principle supe- 
 rior to empirical eudemonism. But Mill's thought 
 wavers on this point, and even the value of the idea of 
 human dignity and higher advantages depends upon 
 the quality of sentiment; and this happens in the major- 
 ity of cases ; therefore the incoherence is not permanent. 
 For Mill, the accord between private and general utility 
 is not a fact, as Bentham thought, but a need created 
 by an association of internal states, the basis of a pro- 
 gressive mental habit. The obligation of seeking the 
 good of all, together with one's own good, has no other 
 base, and consequently moral and rational necessity are 
 exchanged for psychological necessity. But the problem 
 of the passage from one's own good to that of another 
 remains still unsolved, because pleasure, from which, by 
 generalization, the idea of utility arises, is a state 
 belonging absolutely to the person who feels it. Pleas- 
 ure is unstable and most variable, subject to indefinite 
 modifications of the nervous system and of the funda- 
 mental senses. One man's pleasure is not another's, 
 and the same pleasure enjoyed repeatedly by the same 
 subject is not identical. In this way there is no passage 
 from egoism to altruism. Neither is it true that the 
 whole appetitive nature of man is concentrated in
 
 218 ANALYSIS OF DEFINITIONS 
 
 pleasure alone and the original selfish tendencies, for 
 instinct is an activity not preceded by pleasure when it 
 first appears, and the inclination to live and re-live in 
 others through love was never lacking to man. Law 
 is the child of positive statutes and penalties for Mill, 
 although its content emphasizes a superior principle. 
 Imperative utility should in .the last analysis be recog- 
 nized by reason, because only the latter is competent 
 to fix the "suum necessarium." But in the system of 
 Mill the most stringent utility is valued by the quantity 
 and degree of feeling and is the result of experiment 
 and positive calculation on the part of the legislator. 
 Of the two elementary and natural sentiments which 
 compose justice, neither contains the exact measure or 
 proportion, which constitutes law. The selfish impulse 
 to render ill for ill is certainly not moral, neither is 
 sympathy based on a constant and equal criterion 
 varying in degree according to the relations of its sub- 
 ject with the person offended. 
 
 104. Utilitarianism is the Material of Law. With 
 all these vices, utilitarianism contains part of the truth, 
 because utility, if not the principle, is certainly the con- 
 tent or matter of law, as the Italian school of philso- 
 phers and jurists have always taught. The Roman 
 jurisconsults stated that "utilitas" is the substratum of 
 the "jus civile," and the "jus publicum" is distinguished 
 from the "jus privatum" because in the first the "pub- 
 lica utilitas" is important and in the second the "utilitas 
 singulorum," but "utilitas" according to Pedius it only 
 "bona occasio juris," since the base of the law is the 
 "natura rerum," the "natura hominis," and the 
 "naturalis ratio." Among the Romans, law, although 
 conceived in this manner more practical than specula- 
 tive, preserved a certain ethical character in all its phases, 
 which was derived from the conception of the "aequum
 
 MAINE'S CRITICISM 219 
 
 bonum, equitas, bona fides, boni mores," and on the 
 nature of some of the institutions, such as that of the 
 "praetura" and "censura morum." The scholiasts say 
 that law should develop the "bonum" of ''utile commune." 
 In Bruno's mind, it should be lightened by the divine 
 sun of truth and should tend towards the useful. Vico 
 considers law as a proportion of utility. Romagnosi, 
 agreeing with the Genovesi, Spedalieri, and Lampredi, 
 defines law as a system of utility in conformity with 
 moral order. Rosmini looks upon it as a eudemonistic 
 faculty protected by moral laws. 
 
 105. Maine's Criticism of Utilitarianism. Maine 
 disagrees with the historical theory of Bentham accord- 
 ing to which the different societies modified their 
 laws in conformity to their changed ideas of general 
 utility, because utility is a potent but not the only 
 cause of change, which is effected by the influence of 
 new ideas and sentiments which are distinct from utili- 
 tarian conceptions and tendencies. The criticism of 
 Maine that new ideas and sentiment are referable always 
 to a new form of understanding and conception of 
 utility is true, and bears consideration and the light of a 
 strong examination. Certainly all men and societies 
 desire the good, and if the good is wanted by itself and 
 confused with the useful, there would be no method 
 of distinguishing and recognizing that special system 
 called utilitarianism. Utilitarianism is a kind of hedon- 
 ism. It understands the good only or principally in its 
 sensible aspect and measures it by the quality and 
 quantity of the consequence produced by its effectuation. 
 Maine disagrees, on other grounds', with the utilitarianism 
 of Bentham as an ethico-juristic system, and believes 
 that its adoption in the realm of legislation implies no 
 necessity to receive it in that of morals; that one can 
 be utilitarian in legislation and non-utilitarian in morals,
 
 220 ANALYSIS OF DEFINITIONS 
 
 contradiction or no contradiction. But here Bentham 
 is right and Maine is wrong. Nevertheless, it can be 
 observed that the non-utilitarian in ethics is obliged 
 in the study of law by the very nature of the object of 
 his attention to regard utility as the material and the 
 "bona occasio juris." 
 
 106. Spencer's Evolution. Spencer in "The Data 
 of Ethics" admits with Bentham and Stuart Mill 
 that the end of conduct is happiness or utility, but 
 does not follow their method. The method of these 
 two philosophers is inductive. But Spencer points 
 out that the norms of conduct will never be scientific 
 if we cannot learn by deduction the method and 
 reason why one fact is the necessary derivative of 
 another. Experience teaches that some actions bring 
 good and others evil, and indicates the norms of action, 
 but it tells nothing about the method or reason for this 
 derivation. We must start from a principle upon which 
 we can base all the facts of the physical and moral life 
 of man and all living beings. This principle is the 
 persistency of force. Every being tends to preserve 
 its share of force and to react against the elements 
 of disturbance. The capacity of beings to assemble and 
 get enjoyment grows in direct ratio to their capacity of 
 self-adaptation to external circumstances. The adapta- 
 tion is, however, the law of conduct. The end of all the 
 acts of sensate beings is the conservation of their indi- 
 vidual and racial life and coexistence. Conduct cannot 
 be perfect in respect to the first two ends if it is not so 
 in respect to the third, which represents the mutual aid 
 of one's fellow-beings. Only in the human race is the 
 harmony of these three ends fully developed, and so 
 the accord between the individual and the general good 
 is an unavoidable consequence of biological laws. Man 
 and his conduct are the last product of many adaptations
 
 SPENCER'S EVOLUTION 221 
 
 between internal and external forces. No one can marvel 
 at it when bethinks how closely ethical and physical laws 
 are bound together. From impressions are born sensations 
 and reflexive actions; the sensations are pleasant or 
 painful, and man as a sensate being tends to prolong 
 the duration of the former and stop the latter. It was 
 found pleasant to live together, so the great utility of 
 it was discovered. The social inclination was formed, 
 and through long custom and heredity it was trans- 
 muted into an instinct. From the social instinct 
 come all the emotions known under the general 
 name of sympathy. Sympathy is agreement and 
 cooperation which renders the greatest development 
 of individual existence possible. From such an im- 
 pulse arise actions which demand complex representa- 
 tion, while actions born of selfishness have immediate 
 objects; that is, the enjoyment of present pleasure and 
 the shunning of imminent ills, and, therefore, presuppose 
 simple representation. To the series of selfish motives 
 dependent upon social conditions, such as the fear of 
 revenge, law, or public opinion, there comes another 
 order of motives consisting in the consequences of actions 
 not accidental or extrinsic but natural: for example, 
 grief, shame, the harm of one's neighbor, his well- 
 being, without regard to one's own utility. The com- 
 plexity of these motives of growth, habit, and heredity 
 constitutes the moral sentiment which is free of the 
 motives which are founded on a kind of authority. 
 Sympathy increases the more we see the pleasures of 
 our fellow-beings and the more society changes from 
 warlike to industrial. In the first ages society was pre- 
 occupied with its own existence and took only second- 
 ary care of the development of the individual, so busy 
 was it in the war and struggle for self-preservation. 
 Later it became industrial, since its life was less threat-
 
 222 ANALYSIS OF DEFINITIONS 
 
 ened and its existence assured; and it now has for its 
 immediate purpose the protection of individual activi- 
 ties in the diverse spheres of labor. Thus human con- 
 duct ends by being governed by an egoistical altruism. 
 
 107. Criticism of Spencer's Theory. The first obser- 
 vation which occurs to the student of Spencer's theories 
 is that inductive or deductive utilitarianism is sub- 
 stantially the same, showing, that is, a prevalence of 
 the inclination of the senses over reason contrary to 
 the intrinsic order and real value of beings. If it 
 meets the approval of many, it is because it conforms 
 more with what men are wont to be than with what they 
 should be. The simple appetitive tendency to the pur- 
 suit of pleasure and avoidance of pain can never, through 
 habit, heredity, or in general by the greatest variable 
 adaptation, be changed into moral law and obligation. 
 In the first place, all these factors lack the character 
 of necessity and universality of ethical law and obliga- 
 tion; characteristics which mere reflection cannot give 
 and which are not found by the mind in searching 
 the depth of its essence. Association and adaptation 
 do not lead us out of the sphere of psychological 
 mental necessity. And so in Spencer's system we 
 can note what we have already pointed out in the 
 theory of Mill: 1 that the obligation depends upon the 
 greater efficiency of emotions, more complex and more 
 representative; that is, on the quality of sentiment. 
 Adaptation of itself cannot be the supreme law of human 
 conduct, because, though it is true that morality is 
 developed in the common life and should feel its influ- 
 ences, it is none the less true that it remains morality 
 and is governed by the principles of the good as shown 
 by reason, which furnishes the measure within which the 
 individual advantage can be reconciled with general 
 l Cf. 103 ante.
 
 CRITICISM OF SPENCER'S THEORY 223 
 
 utility, considering the special conditions of the indi- 
 vidual and society. The limits, however, cannot be fixed 
 entirely by circumstances; neither can they be entirely 
 external. The doctrine of adaptation is not capable of 
 developing the real ethical initiative which foreruns the 
 ages and emphasizes higher ideals to be effected, be- 
 cause it has a political character and proclaims conduct 
 good which tends to another's happiness in a measure 
 compatible with the individual interest in the given 
 social conditions. Neither does it solve the problem of 
 the change of pleasure into general utility, because 
 pleasure preserves always its selfish and exclusive char- 
 acter, which cannot be tempered or modified except by a 
 higher principle. Spencer renders the accord between 
 the two antagonistic poles of private and public inter- 
 est objective, and transforms the interweaving of the 
 three ends of the preservation of the individual, the 
 development of the species, and coexistence, into a 
 natural law of life. But he does not succeed by this in 
 creating the ethical necessity which is the only pro- 
 duction of thought. In order to attain the idea of 
 duty and right the reason must advance and develop, 
 and it cannot be converted or debased into a calcula- 
 tion of utility dependent upon the tendency of the 
 senses. All the utilitarians, modern positivists, and 
 materialists place the foundation of law in the fact of 
 life, in the organic demand of the species and the social 
 instinct, and do not succeed, therefore, in giving a true 
 explanation of its principle. Nobody doubts that the 
 needs of life, as well as the useful, are a matter of morals 
 and law, and that social instinct, common belief, habit, 
 and heredity, which form the great connective tissue 
 of civil existence, are the conditions of justice and virtue. 
 The question is of the form of these elements and their 
 principles, which are not found outside of reason. The
 
 224 ANALYSIS OF DEFINITIONS 
 
 ancients talked about a primal law intended for the 
 satisfaction of the immediate needs of life, for self- 
 preservation, the union of man and woman, procreation, 
 and the support of children. In the primal law, that 
 is, that of the "antecedents of nature," according to the 
 Stoics, man wishes his own existence, as Vico says. 
 They emphasize, however, a "secondary or derivative 
 law," the same as "consequents of nature" of the Stoics, 
 in which reason was the controlling faculty and man 
 desires knowledge, as Vico says. Whence this part of 
 natural law (it is the Neapolitan philosopher whom we 
 quote) is more immediate and rules the first, giving it its 
 firmness. In this distinction, we can see again the 
 Aristotelean difference between what is first in respect to 
 us and what is first in nature. Sense is first in respect 
 to us, and reason in respect to nature. Now we must 
 find the principle, the fundamental, which is first per se. 
 108. Spencer's Sub-human Justice. Spencer has 
 developed his ethico-juristic conception in a recent 
 book, "Justice." Following his theory of connecting 
 moral laws with the most general laws of the cos- 
 mos, and of rendering ethics more deductive, he begins 
 by speaking of a morality of animals and a sub- 
 human justice. Moral and human conduct is a part 
 of conduct in general, that is, of the sum total of 
 the acts of various beings which are adapted to 
 their own purposes. Among animals, the more perfect 
 conduct tends to a longer, more ample and complete life, 
 and is connected with the two principles which insure 
 the continuance of the species. The first is the natural 
 protection of offspring not able to take care of them- 
 selves. The second is that the adult himself should 
 realize all the advantages and disadvantages of his 
 acts. Sub-human justice means that every individual 
 is subject to the consequences of his nature and con-
 
 SPENCER'S SUB-HUMAN JUSTICE 225 
 
 dition. It advances as organization progresses. The 
 primal law for all being is that of the relationship 
 between conduct and its consequences. Then comes 
 the other law (fundamentally the same) of common 
 life, since it prescribes limitations. The second law 
 orders that the acts through which an individual 
 seeks advantages and avoids disadvantages should be 
 limited by the necessity of leaving the way free to 
 similar acts on the part of his associates. There is 
 a third law which restricts the application of the first 
 and in certain circumstances sacrifices the individual 
 for the species. Human justice is the development of 
 sub-human justice. Fundamentally and essentially both 
 are of the same nature, parts of a whole. In general, 
 justice is characterized by self-subordination to the 
 bonds of relationship, of social limitations, and of the 
 health of the species or community. Among the social 
 sentiments, which are the product of evolution, is found 
 the sentiment of justice. Justice is the extirpation 
 of selfish sentiments which arise when an animal 
 resists the restrictions put upon the acts of his spon- 
 taneous life, and can become the object of altruistic 
 sentiments which presuppose the more or less ample 
 development of sympathy and are connected more 
 properly with the regime of voluntary cooperation. 
 But before the development of the true altruistic senti- 
 ment of justice there are sentiments "pro-altruistic" 
 that constitute the conditions of its development and 
 contain its germs; for example, the fear of retaliation, 
 hate, revenge, and pain. The sentiment of justice 
 cannot fail to have a close relation with the idea of jus- 
 tice which is its criterion. Such an idea has two elements, 
 one positive and one negative. The first is freedom, 
 which creates inequality, because every individual 
 should be treated unequally if he has a different degree
 
 226 ANALYSIS OF DEFINITIONS 
 
 of merit; the negative element is the limitation of the 
 sphere of everyone's activity, by which every individual 
 is considered as the equal of every other. The funda- 
 mental principles of law, which are entirely included 
 by the idea of justice, are not fruits of induction, but 
 are a priori truths experience inherited from hundreds 
 of generations. Empirical utilitarianism exaggerates the 
 force of induction and cannot grasp any of its primal 
 ideas, which it is forced to presuppose. The idea of the 
 sum total of happiness to which individual and collective 
 man should tend, and that of the equal rights of all to 
 happiness, are not deductive but a priori. Positive laws 
 are made on these principles of justice. 
 
 109. Criticism of Spencer's Sub-human Justice. 
 Spencer's "Justice" does not alter his theories as con- 
 tained in "The Data of Ethics." Consequently the 
 criticisms apply equally to both books. If obligations 
 cannot be born of appetitive tendency, habit, heredity, 
 or psychological association, it surely cannot be derived 
 from animality. A moral animal is not conceivable, be- 
 cause an animal does not understand an obligation with 
 its necessity and universality, which are born only of 
 reason. It is the reason of man, furnished with knowl- 
 edge and free will, that recognizes the coordination of 
 individuals and the necessities of life, conceived even by 
 Spencer as the substratum of morals and law. Obliga- 
 tion is the very necessity of things known, valued, and 
 desired by man. What is called the duty of the animal 
 is nonsense, because the animal has no true knowledge 
 or free will. By this loose expression the organic demand 
 or the effect of habit and domestication is of ten described. 
 There is no sub-human justice, because justice is a 
 virtue. It is a habit of realizing, through knowledge and 
 free will, the rational law of the proportion of advan- 
 tages belonging to human nature considered per se and
 
 SPENCER'S SUB-HUMAN JUSTICE 227 
 
 in its methods of individualization, regarded in individual, 
 social, and collective forms. Obligation and justice 
 are facts brought out in evolution and do not effectively 
 appear before man and human social life. Both, as 
 emergent and not resultant facts, are specific products; 
 they have their own characters and principles, which 
 only in an abstract and indeterminate manner can be 
 reduced to the common characters and universal laws 
 of the cosmos. The egoistic and altruistic senti- 
 ments of justice are founded on human nature as the 
 two elements of the idea of justice, which are freedom 
 and the reciprocal limitations of personal activities, are 
 founded on it. The feeling of an animal impeded in 
 the development of its energies, and the indignation of a 
 man deprived of his, are different. Different is the altru- 
 istic sentiment of species and the sentiment which 
 arises from the knowledge of the identity of nature be- 
 tween men and the bonds of union; that is, the coopera- 
 tion of intellects and wills. Explicable freedom is cer- 
 tainly a principle distinct and more elevated than 
 animal energy, than sense of self and spontaneity. 
 The restrictions or limitations on the life of members 
 of an animal species are not at all like the system of 
 bonds inherent in human existence. Spencer makes the 
 mistake of confusing facts and ideas which belong to 
 different orders of evolution because he cannot see the 
 specific differentiation of the evolutionary movement. 
 He confuses organic demands, blind and fatal tendencies 
 of nature, and strictly natural adaptation, with duties, 
 virtues, and purely human facts. The characters and 
 potentialities of human nature are placed by him in the 
 anterior grades of evolution. He compares the instinc 
 tive protection of offspring and the conduct of the adult 
 animal, gifted with foresight, with the intelligent love 
 for one's descendants raised to a duty, and with freedom,
 
 228 ANALYSIS OF DEFINITIONS 
 
 the source of responsibility. We can observe here that 
 abuse of analogy and arbitrary anticipation of elements 
 and attitudes which we have noted on the subject of 
 the explanation of knowledge. 1 Finally we must point 
 out that Spencer goes back to the definition of law given 
 by Kant. He says that the coincidence of his thought 
 with Kant's is entirely due to chance. In 1850, when 
 he wrote "Social Statics," he did not know of Kant's 
 book on the principle of law, whose existence he dis- 
 covered many years after. The only real difference 
 between Kant and Spencer is this: Kant does not look, 
 in his desire to define law, beyond the abstract con- 
 ception of the human world, while Spencer discovers a 
 moral animal and a sub-human justice. Kant could 
 in no wise recognize this projection of ethics, as we shall 
 see later on. 2 
 
 110. Reason is a Result of Evolution. There can 
 be no doubt that morals presuppose biology and asso- 
 ciation. Association raises the powers of life and 
 becomes the immediate condition of a fact of a 
 higher order; that is, of historical development. His- 
 tory is the life of the human race. It is the evolution 
 of the nature of man in that it leads thought, the great 
 dynamic factor in the world of nations. Now adapta- 
 tion to existent social conditions is not all of ethics, 
 even for the positivists, who recognize historical progress 
 and a tendency to come nearer to the idea of the per- 
 fection of human life. Ethics for them are a practical 
 science which seeks not only the laws of moral facts but 
 determines the best means of modifying them in order 
 to attain a perfection not yet existing. This renova- 
 tive and perfective work of ethics represents emancipa- 
 tion from nature and from the control of existing facts, 
 
 l Cf. 28 ante. 
 "Cf. lllinfra.
 
 KANT'S DEFINITION OF LAW 229 
 
 as Angiulli points out. It makes for freedom. Mechani- 
 cal necessity and chance take away all moral value from 
 our actions. In the very conception of a scientific de- 
 terminism is included the power of inherent variation. 
 Such a power is at first natural and then is transformed 
 into conscious activity directed towards an end in the 
 progress of social life. As historical experiences and the 
 influences of culture increase, the power of changing 
 the motive of actions by valuing the present state in 
 respect to an ideal future increases both in the indi- 
 vidual and in society. And here is the real root of 
 freedom. But freedom is not fully understood without 
 cognitive activity and reflection, which constitute and 
 increase the proper energy of the subject in moments of 
 impulse. Freedom is based on reason which is explained 
 by the accumulation of historical experiences but which 
 is not their simple result or sum. 
 
 111. Kant's Definition of Law. Kant's definition 
 of law is one of those which refer to the abstract ra- 
 tional form, as we have said before, 1 and we will 
 now add, those of his follower Fichte, and of Herbart, 
 belong to this class. Kant points out that knowledge 
 is a complex fact, a resultant of sensible and intellectual 
 elements, and that it must be considered in its integrity 
 and not in one of its parts, as Locke and Leibnitz have 
 regarded it. Locke desires to solve the problem of 
 knowledge keeping but one part, sense, in view. Leib- 
 nitz, on the other hand, bases all his theory on the 
 other factor of mind. Knowledge, or experience, is pos- 
 sible according to Kant by means of simple concepts 
 applicable to empirical intuitions. These concepts are 
 not innate, beautiful and made, but constitute original 
 functions of the mind, and are cognitive activity of 
 our spirit. They are called categories, and are not born 
 
 l Cf. 98 ante.
 
 230 ANALYSIS OF DEFINITIONS 
 
 from experience because they are the strongholds in 
 which phenomena are collected; that is, things as they 
 appear to us. They are the functions not of concrete 
 and empirical knowledge, which continually changes, 
 but of always identical transcendental knowledge ; that 
 is, of the "I think." Experience, therefore, presupposes 
 the categories, which render thought possible. If such 
 is the nature of experience, the mind does not know 
 things in themselves, as noumena, but as they appear; 
 that is, as phenomena. Kant, in his "Kritik der 
 Reinen Vernunft," attacks the problem of knowledge 
 which is reducible to two primal elements, sensation 
 and a priori functions. In his "Kritik der Praktischen 
 Vernunft" he attacks the problem of morality which 
 lies in the two termini of the promptings of the senses 
 and in moral law. He, above all, casts aside all the 
 practical principles which make the motive of ethical 
 determination lie in matter. In conformity with these 
 practical principles, the value of moral actions is 
 measured by their consequences, and by a calculation 
 of their result. The only motive of will is pleasure, 
 and the basis of ethics is purely empirical. The 
 heteronomic systems which deduce origins from such 
 principles (for example, hedonism and utilitarianism) 
 cannot explain moral, necessary, and universal law be- 
 cause founded on empirical terms which of their nature 
 are accidental and particular. Thus a heteronomic 
 system is always constructed when a rational element is 
 raised to a principle (for example, when happiness, in 
 its broad sense and in harmony with the higher faculties 
 of man, is made a principle), because an action is ful- 
 filled for an extrinsic eudemonistic reason or an empiri- 
 cal motive, and virtue becomes the result of a maxim of 
 practical prudence. True morality, for Kant, demands a 
 will that is self-ruling by purely formal laws. Will
 
 KANT'S DEFINITION OF LAW 231 
 
 can give laws to itself because it is free and independent 
 of the determining causes in the world of the senses. 
 The property which the will has to give itself laws, sepa- 
 rating itself from extrinsic objects, is autonomy. Auton- 
 omous will, the indispensable condition of morality, 
 is that which is determined by itself at every point, 
 which is self-sufficient and does not look to foreign 
 objects. Law, therefore, is born of the will and at the 
 same time it alone immediately determines the will, 
 because it is pure form. Moral principles, according 
 to Kant, notes Chiappelli,in "Sul Carattere Formale del 
 Principio Etico," should be a common law valid for all 
 rational natures. It should be universal and necessary 
 as well and have an imperative character, not hypo- 
 thetically imperative based upon the convenience of 
 actions to their ends and consequences, but categorically 
 and absolutely so. Law lies in what will has deter- 
 mined, not for an external end but with regard to the 
 harmony and utility of which the law consists. Law must 
 be unconditionally obeyed, but in knowledge categories 
 have no value unless they are applied to intuition. The 
 ego would not be blind without categories, not vain with- 
 out intuitions. Kant unifies these two terms, and places 
 the possibility of cognition regarded as a whole in the prin- 
 ciple of the original synthetic unity of the intuitions and 
 categories, of sense and intellect. In the moral field, 
 the two terms are absolutely contrary. They do not 
 agree, and form has value without being applied to 
 empirical data. Hence the lack of harmony between 
 practical and theoretical reason. Cognition is essen- 
 tially phenomenal and relative. It does not touch 
 things in themselves. Free will alone urges us towards 
 the noumenon, the supra-sensible reality which is not 
 known as an object and cannot be brought into existence 
 in the practical order. By such a method there arise, as
 
 232 ANALYSIS OF DEFINITIONS 
 
 postulates of practical reason, that is, as the demands 
 of moral consciousness but not as knowledge, the three 
 concepts of freedom, the immortality of the soul, and 
 of God. Pure reason contains some antinomies which 
 destroy their theoretical value. Having premised these 
 considerations, we can say that Kant deserves great 
 credit for having determined the ethical principle in its 
 greatest purity, and for having given duty an uncondi- 
 tional and absolute value. Kant's ethics are constructive 
 and imperative, differing from the ethics of the ancients, 
 which were realistic and descriptive, founded on external 
 elements of nature and custom. 
 
 112. Kantian Ethics. The ethics of Kant are 
 abstract and formal because moral law, duty, and 
 the autonomy of will lack concrete content. Man 
 is not only reason but sense and appetite as well, yet in 
 the doctrines of Kant he is looked upon entirely as 
 reason which proudly throws off all allegiance to every 
 inclination of sense. In fact, will is autonomous when 
 it does not remain indeterminate but enters the lists 
 against desire, passion, and interests to conquer and 
 transform them to reason. True autonomy is the re- 
 sult of the active energy of the will and does not con- 
 sist in simple abstraction. Aristotelean eudemonism 
 and Kantian formalism are logically connected in the idea 
 of the perfection of human nature. Eudemonism gives 
 us the content, and the imperative category, the form. 
 Happiness in such a conciliation is not the empirical 
 principle of ethics argued against by Kant but the conse- 
 quence of the necessity of subjecting instinct and inter- 
 est to reason. It is not true that all systems which give 
 a content to moral principles are founded on pleasure 
 and are reducible to egoism. Human nature tends 
 towards its end. The end is the good, the perfection 
 of man. The end of man is his perfection or good,
 
 KANT'S MORALS ARE ABSTRACT 233 
 
 and therefore law consists in his subordination of the 
 elements of sense to reason. This subordination once 
 realized, we have eudemon, happiness. Pleasure is the 
 necessary complement of perfect human activity and not 
 the motive of will. The idea of the end is derived from 
 the essential character of human nature, and therefore 
 is obligatory and constitutes the imperative category, 
 whose concreteness is shown by Kant when he says that 
 rational nature must be considered as ultimate and not 
 medial. The categorical imperative of Kant, contain- 
 ing the formal ethical principle, is of no avail. It decrees 
 that a right of action is convertible with law and can serve 
 as a rule of conduct in all times and places, but it does 
 not indicate what should be done. Every right of action 
 gives rise to a universal maxim, but from this it does not 
 follow that the action is moral. And if the maxim was 
 made universal, the action would not longer be possible, 
 and it is evident that a recourse would have to be had 
 to a calculation of the consequences, which is impractical. 
 Law, for example, prohibits a breach of promise; but 
 no promise would be possible if this law became a uni- 
 versal maxim. Kant himself argues in this manner 
 without reflecting that he looks to the consequence 
 of the act, which he should not do according to 
 his premise. Certainly universality is an essential mark 
 of the ethical principle, but does it constitute all its 
 origin or substance? 
 
 113. Kant's Morals are Abstract. The abstraction 
 of the theory is seen as well under another aspect 
 studied by Chiappelli in the book cited. 1 Kant 
 bases all morality upon pure will understood in 
 itself and does not emphasize in the slightest its 
 concrete derivation. Aristotle, on the other hand, 
 understood that the end, the good and happiness, pre- 
 
 1 Cf. "Sul Carattere Formale del Principio Etico," cit. 111.
 
 234 ANALYSIS OF DEFINITIONS 
 
 supposes autarchy which is obtained only in the common 
 life and he, therefore, together with the other Greek 
 philosophers, concluded that ethics were part of politics. 
 According to him, morality is not possible without the 
 interpenetration of individual consciousness with society. 
 Kant, however, departs from this condition and stays 
 within the confines of the subject itself, without regard 
 to its concrete position. Aristotelean thought is to-day 
 revived by the doctrine of evolution, based on the 
 conception of ethics as part of politics, and tries to 
 explain morality as a natural formation due to a coming 
 together of natural, spiritual, hereditary, historical, 
 and social causes. Evolutionary ethics gets its data 
 from moral consciousness, explains the concrete genesis 
 of moral facts, but cannot solve the problem of morality. 
 The apriority of moral laws is very different from apri- 
 ority in biology, history, or heredity. Moral law is 
 necessary and universal, and as such cannot be the result 
 of experience. But as the apriority of the forms of 
 intuitions and categories of the mind do not exclude 
 the formation of empirical knowledge, so the evolution- 
 ary and ethical explanation of the concrete and 
 historical genesis of morality reduced to the proportions 
 of a doctrine, or their data about moral consciousness, 
 can be accepted as the complement of the theory of the 
 possibility of the ethical act and of the nature of the 
 moral principle lying in the purpose of man. 
 
 114. Kant's Idea of Law is Abstract. The idea 
 of law is formal in the theory of Kant. Law, for 
 him, is the sum of the conditions of coexistence 
 of the will of everyone with the will of all 
 through a universal law of freedom. But of what this 
 sum and this universal law consist in their concreteness 
 is not told by Kant. Law becomes thus a purely 
 abstract principle, that takes no account of the real
 
 KANT'S IDEA OF LAW IS ABSTRACT 235 
 
 historical relations of the order of things. Rosmini 
 makes four observations about the Kantian theory of 
 law. The first is: Whoever wishes law to consist in the 
 possibility of the coexistence of persons does not make 
 enough of the element of the rectitude of action. There 
 could be an action wrong under the laws of nature pro- 
 motive of coexistence, to which no one would have a 
 right since there is no faculty for doing evil. The second 
 can be formulated as follows : Even when all the sum 
 of the illicit actions would effectively destroy coexist- 
 ence they would not be illicit only on that account. 
 The failure to detract from coexistence is not the con- 
 stitutive part of the rectitude of actions and law but is 
 the sign of it, the very mark of universality. It is the 
 "principium cognoscendi," not the "principium essendi." 
 The third is: Universality is equivocal and needs interpre- 
 tation, because it is either absolute universality, in which 
 case, however licit the act, if done by all men, it 
 would destroy coexistence; for example, if every- 
 body undertook to make shoes, who would remain to 
 cultivate the earth? or it is relative to the circum- 
 stances of the man in question, and no iniquitous action 
 would destroy coexistence although it were permitted 
 to all men in the same circumstances, because the 
 condition would never be renewed. Finally, and this is 
 the fourth observation: It cannot be said that if any 
 action is clearly licit and not harmful to coexistence 
 that it should, therefore, be left free to all men ; a requisite 
 condition for it to constitute a right. A father can 
 hinder the most licit actions of a son through his paternal 
 rights, though those actions, become universal, would not 
 destroy existence. These actions of the son cannot, how- 
 ever, be called, in relation to the father, true rights. 
 Logically, coexistence and limitation of freedom are the 
 results of the realization of the rational measure or
 
 236 ANALYSIS OF DEFINITIONS 
 
 proportion of advantages, but do not form its essence. 
 For Kant, the State has no other mission than to regulate 
 the coexistence of freedom, and looks only to acts of pro- 
 tection ; that is, to law and police. It nevertheless repre- 
 sents, for the German philosopher, a necessity of reason 
 because though born, it is true, of contract, it is not 
 arbitrary, since man acquires true liberty, equality, and 
 independence in the State, as he says. This conception 
 contains in itself the germ of the correction of the theory 
 and assigns to the State the restricted finality of mere pro- 
 tection of persons and goods. Likewise, looking deeply 
 into the formal categorical imperative itself, we find 
 traces of something positive, or the principle of the will 
 as the supreme and absolute purpose which demands 
 respect for the person and liberty for all. 
 
 115. Fichte s Definition of Law. The idea of law 
 under the aspect of conditionality is developed still 
 more in the school of Kant by the work of Fichte 
 in "Grundlage des Naturrechts." He states that the 
 ego should recognize itself as free essence; that is, 
 should limit its liberty by the conception of another's 
 liberty. The juridical relation is that which extends 
 between two rational beings by which each limits 
 his freedom through the notion of the freedom of 
 the other on condition that the other limits his. For- 
 malism is here manifest because it always remains to 
 be determined of what the positive and supreme prin- 
 ciple consists from which the law as a possibility of the 
 limitation of free essence is derived. The very impera- 
 tive of Fichte's "Be Free" is formal, since freedom is 
 formal. Moral action, which for Kant is based on con- 
 formity to necessary and universal law, is derived for 
 Fichte by the action of the ego through conviction, and 
 succeeds through a reciprocal enthusiasm and excite- 
 ment in so working. But Fichte does not say in what
 
 FICHTE'S DEFINITION 237 
 
 this conviction lies, or rather he does not indicate its 
 content, because it becomes a condition of morality. 
 According to Kant, juridical freedom is from its birth 
 limited by universal freedom; for Fichte it has its 
 origin in the individual real existence of the ego and lies 
 in the right of the rational being to advance as the only 
 cause in the world of the senses, and is of itself as un- 
 limited as the coercive faculty which adheres to it. 
 If it was not that one ego must admit another, it would 
 attribute to itself unlimited power, and therefore would 
 spontaneously moderate its own power when it limited 
 the power of others by its own. In the rational being, 
 there is love of duty for duty's sake, a love of self and 
 of one's co-citizens per se. One is called a tendency 
 and is absolutely obligatory, and the other is called a 
 power and has not the same character because it is 
 reducible to unlimited freedom, which excludes every 
 law. Such subjectivism and ethical relativism is a 
 direct consequence of Fichte's system. 
 
 116. Herbart's Definition. Herbart states that 
 philosophy is nothing but an elaboration of the con- 
 cepts. Philosophy is divided into logic, metaphysics, 
 and aesthetics. Logic works for the formal clearness of 
 the concept and pays no attention to their content. 
 Metaphysics, for its part, is occupied with the con- 
 tent, and clears the concepts of the contradictions in 
 which they are involved, makes them whole, and 
 gives them their justification. .^Esthetics include the 
 series of concepts and judgments that are referable 
 to particular states of mind, -to pleasure and pain. 
 Between theoretical and aesthetic judgments there is 
 this difference: that the first give the cognition of 
 things and look to their value, and the second do not 
 consider the value and are limited to showing their 
 pleasure and pain. Many of the aesthetic judgments
 
 238 ANALYSIS OF DEFINITIONS 
 
 are made by ethical judgments which approve or dis- 
 approve of actions. Ethics entering into aesthetics 
 cannot understand any imperative because an impera- 
 tive always implies a duty to do or to abstain from doing 
 something. Morality is therefore a formal concept and 
 cannot be reduced to an imperative, as Kant taught, but 
 is reducible to five practical model ideas; the idea of 
 freedom (the accord of the will with its own motives), 
 the idea of perfection (the harmony between the 
 extension and intension of our volitive activity), the 
 idea of benevolence (the agreement between one's own 
 will and the wills of others), the idea of law (the har- 
 mony of several wills in respect to an object for the 
 prevention of a contest), and the idea of equity (the 
 accord between merit and recompense). If all these 
 forms of accord are present, there will be an ethical judg- 
 ment of approval, and if not there will be one of dis- 
 approval. Such models act also as motives. From 
 the five practical ideas come five social ideas: from the 
 idea of perfection comes the system of education, from 
 benevolence the administrative system, from law comes 
 the juristic system, from equity the system of retribu- 
 tion. Now it is evident that the doctrine of Herbart, 
 shown in his "Allgemeine Praktische Philosophic," is 
 founded on the most exaggerated and absolute formal- 
 ism excluding every substantial content from the ethical 
 principle. Ethics are deprived of the duty of action. 
 They lack nomologyand exist only in the sphere of aesthet- 
 ics or sensibility and formal harmony. Without doubt, 
 law with its prescriptions tends to prevent and eliminate 
 disagreements and struggles. But it cannot be reduced 
 to a simple norm for their avoidance, because it is an 
 energy which passes from one phase to another and tends 
 to maintain a determinate figure and meet the obstacles 
 in its path. Law has not a true aesthetic character
 
 KRAUSE AND AHRENS 239 
 
 apart from the struggle which is its life. True beauty 
 does not arise from adherent elements, but from the 
 depth of the soul, from effort and activity. Accord 
 and harmony are abstract forms of law, or rather the 
 consequence of its realization, like, in that, to coexist- 
 ence, but they cannot possibly constitute its principle. 
 Law, struggling and conquering opposition, establishes 
 peace, and the peace which succeeds the war against 
 injustice on the one hand increases the force of law 
 itself, which becomes a power more to be feared, and on 
 the other confers upon it greater splendor and beauty. 
 
 117. The Definitions of Krause and Ahrens. In 
 the definitions given by Krause in "Abriss des Systems 
 der Philosophie des Rechts oder des Naturrechts," 
 and by Ahrens in "Naturrecht oder Philosophie des 
 Rechts," the principal defect lies in including all the 
 essence of law in the single conception of conditionality. 
 In fact, Krause and Ahrens, defining law as the organic 
 complexity of free conditions for the harmonious fulfill- 
 ment of the destiny of man, show but one aspect, the con- 
 ditional, and degrade law to the point of representing 
 it as a simple collection of means. Certainly, law offers 
 man the conditions of life and development, and pro- 
 tects his advantages, but it must also be considered as 
 the realization of the principle of good, and therefore 
 under the higher aspect as a participant in uncondi- 
 tionally. Geyer in "Geschichte und der System der 
 Rechtsphilosophie in Grundziigen" thinks that Tren- 
 delenburg's definition is like the definition of Krause 
 when the former says that law is the complexity of the 
 universal determinations of action, which render pos- 
 sible the preservation and perfection of human society 
 in the form of an ethical whole and its particular parts. 
 Geyer is right if these universal determinations of action 
 are understood as conditions necessary for its realiza-
 
 240 ANALYSIS OF DEFINITIONS 
 
 tion, as Trendelenburg himself says, followed by Ulrici 
 in "Das Naturrecht" ; that is, that it is ethical in 
 dealing with national law, with the power proper to an 
 organic whole. But, if this interpretation is accepted, 
 law would lose its very substance and be reduced 
 to a means for the realization of ethics, and what 
 is purely ethical would be the ethical branch of 
 law. Thus its coercive power would implicitly be 
 denied, because force is repugnant in the sphere of 
 pure morals. If, therefore, the complexity of univer- 
 sal determinations of action can be thought of as the 
 system of external freedom, the definition of Trendelen- 
 burg is the same as the conception of Hegel that we 
 have given before. 1 In truth the thought of Trendelen- 
 burg of the specific essence of law is not precise and is 
 capable of a double interpretation. 
 
 118. Law is an Ethical Principle. All the defi- 
 nitions examined contain, as shown by their criti- 
 cism, part of the truth. Law is an ethical principle 
 and has intrinsic form and material content. Reason 
 is the form as shown by Plato, Aristotle, Stoics, 
 Roman philosophers and jurisconsults, Saint Thomas, 
 Dante, Grotius, Vico, Hegel, Rosmini, and Trendelen- 
 burg. The matter is the need of life, the demand of 
 species, utility ; elements shown clearly by the modern 
 materialists and positivists, by Epicurus, Bentham, and 
 Stuart Mill. Law presupposes common life with lan- 
 guage, custom, and heredity as has been especially 
 shown by Aristotle, Mill, the Darwinists and Spencer. 
 In its realization, it gets its value from force of which 
 Thrasimachus speaks and from the physical and psycho- 
 logical coercion of Hobbes, and becomes the united 
 force of all or the power of union, as Spinoza teaches. 
 Law is manifested concretely by the will of the major- 
 
 1 Cf. Intro, p. 68, ante.
 
 LAW AN ETHICAL PRINCIPLE 241 
 
 ity according to Rousseau. It results in the limitation 
 of freedom upon which Kant and Fichte base their 
 definitions and the harmony of Herbart, after the 
 struggles which Vico and Ihering describe. Finally 
 law, since it is a higher ethical principle, offers and 
 protects the conditions necessary for the life of man 
 and his perfection, as Krause and Ahrens thought.
 
 242 LAW, MORALS, AND SOCIAL SCIENCE 
 
 CHAPTER VIII 
 LAW, MORALS, AND SOCIAL SCIENCE 
 
 LAW AS AN ETHICAL STUDY. THE RELATION BETWEEN 
 MORALS AND LAW IN HISTORY. CRITICISM OF THE CON- 
 FUSION AND SEPARATION OF THE TWO TERMS. THE COM- 
 - MON BASES AND REAL DIFFERENCE. ETHICAL AND SOCIAL 
 LIFE. VICO, SUESSMILCH, AND THE PHYSIOCRATIC FORERUN- 
 NERS OF SOCIAL SCIENCE. COMTE'S SOCIOLOGY AND THE 
 VARIOUS MOVEMENTS. SPENCER'S SOCIOLOGY. SOCIOLOGY 
 AS THE PHILOSOPHY OF THE SOCIAL SCIENCES. THE ANALO- 
 GIES BETWEEN SOCIETY AND ORGANISM. THE RELATIONS 
 BETWEEN LAW AND THE SOCIAL SCIENCES. 
 
 119. Positive Law is Allied with Morals, the Social 
 Sciences, Economics, and Politics. After we have 
 determined the idea of the law in an inductive, deduc- 
 tive, and critical manner, we must show the connection 
 of rational law with morals, the social sciences, eco- 
 nomics, politics, and positive law. Law is above all an 
 ethical study and therefore it is best to begin with an 
 examination of its relations with ethics in general and 
 with morals in particular. 
 
 120. Morals and Law Originally One. There 
 was necessary in primitive days an all-powerful, ex- 
 tended, single, indivisible force which contained all the 
 activities of man within certain limits and established 
 customs, and enforced obedience and normal action or 
 the fibre of legality, as Bagehot expressed it. These 
 were the days of the Polyphemi, of which Vico speaks. 
 In them, spiritual and moral were indistinguishable from
 
 LAW DISTINGUISHED BY ROMANS 243 
 
 juristic and legal punishments; the mind, still in its 
 childish state, was confused and was not in a position 
 to analyze and abstract. Centuries of unchanging 
 uniformity, monotony, confusion, and slavery always 
 precede those of variety, analysis, and freedom. It is 
 useless, therefore, to search in those ages for the traces of 
 law distinct from morals. The confusion of the two 
 terms lasted even into the classical age, in which the 
 spirit was emancipated from the yoke of nature and was 
 given new life through art and speculative thought. 
 In fact, the laws of the Greek States not only controlled 
 the external activity of the citizens, but tended to inter- 
 penetrate with their intimate will, not separating motive 
 from action. For example, justice according to Plato 
 consists principally in internal acts; Aristotle calls only 
 those men just who desire and realize what is just. 
 In Greece there is no word to signify law, because it is 
 resolved in the universal concept of justice. 
 
 121. Morals and Law Distinguished by the Romans. 
 The Roman philosophers and jurisconsults distin- 
 lished morals from law, but the distinction was not 
 Iways precise and clear, neither had it the force of an 
 qplicitly declared speculative principle. It appears 
 from their distinction that the "bonum," defined by 
 meca as "quod ad se impetum animi secundum naturam 
 lovet," became external in two forms in the "bonum 
 niod honestum est" and the "bonum quod sequum est." 
 Allowing the philosophers more particularly than the 
 jurisconsults it can be stated as Cicero said, "honestum 
 st summum bonum," and that it is per se voluntary 
 luse "nihil honestum quod ab invito quod a coacto 
 it," as Seneca pointed out; and that it develops in the 
 icre of intimate consciousness as well as in that of 
 :tion. The jurisconsults, however, recognized moral 
 and distinguished them, as Capuano points out
 
 244 LAW, MORALS, AND SOCIAL SCIENCE 
 
 in his "Primi del Diritto Romano." Moral facts are 
 those which depend upon purely individual ends, such 
 as the good or bad administration of one's affairs accord- 
 ing to whether one acts moderately or without due 
 thought. They are referable to acts of liberality incap- 
 able of coercion and to "cognitatio" for which no one is 
 punished and to acts upon which no pecuniary value 
 can be placed, such as freedom. The grounds of dis- 
 tinction according to the jurisconsults is the spontaneity 
 of the moral act and the necessity of the juristic act. 
 It is written in the sources of law: "Sicuti voluntatis et 
 officii magis quam necessitatis est commodare, ita modum 
 comodati finemque praescribere eius est qui beneficium 
 tribuit. Cum autem id fecit (id est postquam com- 
 modavit) tune finem praescribere et retro agere atque 
 intempestive usum commodatae rei auferri non officium 
 tantum impedit sed et suscepta obligatio inter dandum 
 accipiendumque : geritur enim negotium: et ideo in- 
 vicem propositse sunt actiones ut apparent quod prin- 
 cipio beneficii ac nudae voluntatis fuerat converti in 
 mutuas praestationes actionesque civiles." The "bonum 
 asquum" is founded on the "naturalis ratio" and is 
 derived from the "bonum" and "honestum" because, 
 as Papianus says, "facta quae laedunt pietatem existi- 
 mationem verecundiam nostram et ut generaliter dixeram 
 contra bonas mores fiunt nee facere nos posse creden- 
 dum est." This derivation is taken from Cicero's and 
 Ulpian's definition and from the three "praecepta juris." 
 Cicero wrote that "justitia est habitus animi communi 
 utilitate confirmata suam quique tribuens dignitatem," 
 and Ulpian stated that justice is the habit of the mind 
 "constans ac perpetua voluntas jus suum quique tribu- 
 ens." Of the three general principles of law or "prsecepta 
 juris," the first or the "honeste vivere" represents the 
 moral basis of law; the second, that is, "neminem
 
 DISTINCTION IN THE MIDDLE AGES 245 
 
 \azdere," is the formula of the negative legal duties; while 
 the third or "jus suum quique tribuere" regards the 
 positive legal duties, .as Morianus points out. Ulpian 
 adds that the jurisconsults are called the priests of jus- 
 tice because they teach men to be good and just. The 
 three concepts of "sapientia," "prudentia," and "juris- 
 prudentia" emphasize the connection between the 
 "bonum aequum," the "bonum" and "honestum." 
 But this does not imply the identity of the three terms. 
 "Sapientia" is the knowledge of all good, human and 
 divine. It is the "scientia divinarum atque humanarum 
 rerum" of the Stoics, philosophers, and jurisconsults. 
 "Prudentia" is the knowledge of the "bonum honestum." 
 "It is," thought Cicero, "rerum bonarum et malarum, 
 neutrumque scientia." "Jurisprudentia" is the knowledge 
 of the "bonum aquum, est justi atque injusti scientia," 
 founded on the "notitia divinarum atque human- 
 arum rerum." The "bonum sequum" is connected with 
 utility. It is "constitutum hominum causa." It admits 
 of coercion, for, as is written in the sources, "Sanctio 
 legum certam poenam irrogatiis qui praecepto legis non 
 obtemperaverint." It is developed in external action 
 and not in the intent; "nee consilium habuisse noceat 
 nisi et factum secutum fuerit." The distinction between 
 morals and law is proved as well by the sentence of 
 Paulus: "Non omne quod licet honestum est;" and by 
 the Institutes, "condictio ob turpem vel injustam 
 causam." 
 
 122. Distinction between Morals and Law Disap- 
 peared in the Middle Ages. In the Middle Ages 
 this distinction does not appear, because the Church 
 subjected the most intimate part of man and acted 
 as the conscience of the State, which lost its ancient 
 and classical signification and was forced to live as 
 the body of the Church. The latter pretended to
 
 246 LAW, MORALS, AND SOCIAL SCIENCE 
 
 scrutinize men's souls and embraced in the Holy 
 Inquisition the coercive means of civil authority. Sin 
 was converted into crime ; the great sin of heresy 
 became the greatest crime to be stamped out by the most 
 efficacious prevention and the most energetic and 
 exemplary repression. Exorbitant claims, however, pro- 
 voked a reaction, and the principle of liberty of con- 
 science appeared at first in Italy and afterwards in other 
 countries. Bruno taught that acts or deeds should not 
 be punished, which did not affect the peace of the 
 State. Later, Grotius emphasized a strict and perfect 
 right comprehensive of power, property, and the per- 
 missibility of demanding what is due, and an imperfect 
 right which connotes virtue, liberality, and reward. 
 He did not distinguish law from morals in so many words 
 since he reduced both terms to a kind of law, but it cannot 
 be denied that this broad conception of the two terms 
 in the qualifications of an imperfect and perfect law are 
 the germs of a specific differentiation. Puffendorf, the 
 author of "Elementa Jurisprudentise Universalis," "De 
 Jure Naturae et Gentium," and "De Officio Hominis et 
 Civis," retarded the progress of philosophy in sub- 
 ordinating internal duties to theory and external duties 
 to natural law. Leibnitz, in his celebrated treatise 
 "Nova Methodus Discendae Jurisprudentiae," corrected 
 the error and took the internal duties away from theo- 
 logical control and replaced them in moral philos- 
 ophy. Thomasius, in "Fundamenta Juris Naturae et 
 Gentium," really separated the imperfect and incoercible 
 duties which are referable to the internal peace of mind 
 from perfect and coercible duties which keep the 
 external peace. Kant conceived the unity of morals 
 and law in his metaphysics of customs, as a science which 
 comprehends the principles of ethical and juristic notions, 
 but attained knowledge of their absolute separation
 
 CONFUSION AND SEPARATION 247 
 
 when he wrote that morals have to do with internal 
 acts and intentions, and can command in their own way 
 what law commands, while law which has to do with ex- 
 ternal acts has nothing to do with intentions, and can- 
 not enforce moral precepts. Moral legislation has its 
 motive in the absolute idea of duty; juristic legislation 
 demands only the conformity of action to an established 
 norm. Fichte adds that law would go on existing if 
 nobody had a good intention ; that physical force alone 
 would give law a right to existence. 
 
 123. The Confusion and Separation of Law and 
 Morals are Both Wrong. Confusion and separation repre- 
 sent two excesses: confusion is the mark of primitive 
 times or the epoch of immobility ; separation is the pro- 
 duct of modern dispersive analysis. Intention cannot be 
 the same as action, pure will as act. Internal freedom 
 ("bonum quod honestum est") cannot be the same 
 as external freedom ("bonum quod sequum est") 
 because the interiority of a thing differs from its 
 exteriority. Thus the confusion of morals and law 
 renders all morality coercible and places a value 
 upon the intent of itself and not upon its result 
 and action in the field of juristic relations. On 
 the contrary, separation destroys the natural bonds 
 between the terms and removes them absolutely from 
 their original synthesis. In intent and act, in will and 
 work, in internal and external freedom, there is man 
 with his ethical action. Neither in the "bonum quod 
 honestum est" nor in "bonum quod aiquum" alone lies 
 the whole principle of the "bonum." Separation cannot 
 be admitted, because under the negative and prohibitive 
 precepts of law and the statutes, the spirit of morality 
 is active, working for the attainment of the high ends of 
 education, now establishing chastity and moderation 
 of custom and now rejuvenating the soul and spirit, as
 
 248 LAW, MORALS, AND SOCIAL SCIENCE 
 
 Trendelenburg says. The matrimonial laws which pro- 
 hibit marriages under certain conditions and those which 
 forbid military trials, show the two ends indicated. It is 
 not true that law takes no account of intent, because it 
 considers it in contracts, wills, constitutions, and crimes. 
 Law does not consider the intent except as it is shown by 
 the act and does not contemplate it of itself as morals 
 do. It is not possible for the State and statutes to 
 exist long if they are threatened by general hatred. 
 The truth is that morals and law cannot be confused or 
 separated but only distinguished with due recognition 
 to their common origin, which is found in the universal 
 practical philosophy of the ancients or in ethics making 
 for the realization of the ends of man, for his well- 
 being in its amplest extent. The ethical act, the reality 
 of the human end and good result from the process 
 which subordinates the inclination of the senses, 
 interests, and utility to the sovereign control of reason, 
 as we have said. 1 Such was the universal justice of the 
 philosophers, which is not now morals and now law but 
 rather their primitive unity. Platonic justice coordi- 
 nates the particular virtues and assigns its field to each 
 faculty. The universal justice of Aristotle is the whole 
 of virtue. Law, in the broad sense given it by Grotius, 
 embraces morals and law. And the force of the true 
 in human reason which struggles against cupidity and 
 weighs the different utilities is, for Vico, the principle 
 of the two studies. Hegel admits law in the general 
 sense growing out of the confusion of the subjective and 
 objective will and comprehensive of the two terms. 
 Romagnosi speaks of law in the same sense; that is, 
 as the norm, which moderates human acts, derived 
 from the real and necessary nature of things. Rosmini 
 regards juristic justice as a part of universal justice. 
 
 Cf. 85 ante.
 
 SEPARATION AND CONTRADICTION 249 
 
 We have observed before 1 that if the process of sub- 
 ordination comes to a preference in internal conscious- 
 ness and is seen in the sphere of intention per se, we have 
 morals; and if, on the other hand, it has to do with 
 external relation between man and man or man and 
 things, we have law properly so called. Morals and laws 
 are two branches of ethics, are two methods of effecting 
 the human end, or that of ethical reality. Whence it 
 follows that morals are not complete entirely in the con- 
 sciousness but are shown in action, because they are 
 always an ethical reality and as a reality cannot fail to 
 have an external side. On the other hand, law is not 
 reducible to a wholly external and pharisaical practice 
 without any basis or intention because it, too, is ethical 
 reality and therefore essentially implies a certain intent. 
 The ethical act, the conformity of the subjective and 
 objective will, and the subordination of the elements 
 of sense to reason cannot be absolutely internal or abso- 
 lutely external because they are the effect of the whole of 
 man and the development of all good in general. The 
 internity and externity represent only the prevalence 
 of the intention or action in the development of this 
 principle. Morals comprehend action but consist prin- 
 cipally of intent. Law is extended over the intent but 
 is particularly occupied with the act. Since they are 
 branches of ethics, they cannot be contradictory in their 
 origin, nor can either be entirely abstracted from 
 action or intention. 
 
 124. Separation and Contradiction of Morals and 
 Law. Some believe that there is a separation and some- 
 times a contradiction between morals and law. A man, 
 for example, can legally break a promise which morally 
 he is bound to keep. The creditor can cruelly pursue 
 his action against the unfortunate and guiltless debtor 
 
 l Cf. 122 ante.
 
 250 LAW, MORALS, AND SOCIAL SCIENCE 
 
 and put his family out into the street, though that is 
 immoral. Everyone can dissipate his own estate and 
 lead a dissolute life, but morals prohibit dissipation and 
 dissoluteness. The debtor can with bad grace pay 
 what he owes the creditor; the act is legal but immoral. 
 All these examples, however, prove only one thing; that 
 morals and law have two different spheres and are sepa- 
 rate but uncontradictory studies. It is true that who- 
 ever breaks his promise is guilty of an offense against 
 morality and possibly none against law, but on the other 
 hand whoever fulfills it observes morality and is guilty 
 of no offense against law. If there was a true contra- 
 diction, as Cavagnari showed in "Corso Moderno di 
 Filosofia del Diritto," respect paid to morality might 
 though it is not certain be an offense against law. 
 In the case of a fundamental right there is no contra- 
 diction, because the law is essentially permissive. There 
 would be a real contradiction if the creditor was made 
 by the law to sue his unfortunate debtor. Man has a 
 right to freedom in private conduct and can dispose of 
 his goods as he desires, saving always a respect for the 
 opinions of others and the limitations of a social and 
 political order. He has, therefore, no right to dissipa- 
 tion and dissoluteness but a right not to be interfered 
 with in the exercise of his power of disposition and con- 
 duct of life. So in the hypothesis of the observance of law 
 without a good intent there is no contradiction, because 
 there is an act ethically perfect performed to all appear- 
 ances as if the good intent accompanied the legal act. 
 If sometimes the intent is discordant with the act, that 
 depends upon the distinction between the two realms and 
 sciences, but if there were contradictions the coincidence 
 of the two terms in a single act would not be possible. 
 Rosmini taught that the so-called immoral rights are 
 relatively and not absolutely immoral. In other words,
 
 ROSMINI NOT CLEAR 251 
 
 law is immoral whenever it does not forbid an irrational 
 or wrongful act, whenever it permits an act presuming 
 it to be honest because of the impossibility of proof, 
 and whenever it does not forbid an immoral act because 
 of underlying fundamental right. 
 
 125. Rosmini Does Not Clearly Understand the 
 Difference between Morals and Law. If, on one hand, 
 Rosmini eliminates the possibility of the true con- 
 tradiction between morals and law, on the other 
 hand he is not always exact in his conception of 
 these two terms. He reduces the sphere of the law 
 to that of the licit, as we have shown before, 1 and 
 does not give his attention to the juristical duty 
 which is the natural antecedent of the "facultas agendi." 
 In treating of the essential ends of personality, law com- 
 mands or prohibits, but primarily there is a duty of 
 doing or not doing what the law commands or pro- 
 hibits, and this duty is juristic and there is a legitimate 
 right not to be hindered in the fulfillment of the duty. 
 According to Rosmini's conception, the field of law is not 
 as large as it should be, and consequently he is not on 
 the road to fix correctly the boundaries of the two 
 sciences. Furthermore, Rosmini places the specific 
 difference between morals in the eudemonological con- 
 tent of law, as if the general good, as an ethical object, 
 did not comprehend happiness interpenetrated with 
 reason. The good is derived from the subordination 
 of the elements of sense to reason. Ethics contain 
 eudemonology and are not modelled upon an abstract, 
 formal, and empty principle like that of Kant. In morals, 
 the eudemonological content is referable more to the 
 internal sentiments of the mind; in law it has more 
 regard for extrinsic utility; but this does not mean 
 that the useful is foreign to morals or that pleasure or 
 
 l Cf. 124 ante.
 
 252 LAW, MORALS, AND SOCIAL SCIENCE 
 
 displeasure is foreign to law. It is only a question of the 
 prevalence of one or the other elements. 
 
 126. The Theory that the Useful, Just, and Honest 
 are Three Aspects of the Good. Carle in his "Vita 
 del Diritto" writes that the useful, just, and honest 
 are three aspects of the good. The useful corres- 
 ponds to the senses of man by the bonds which 
 it has with matter, from which he gets his means 
 of sustinence. The just is connected with the social 
 nature of man and is coercive, thus rendering civil 
 community possible. The honest is that side of the good 
 which is most intimately connected with the spiritual 
 and moral part of the human being, and his growth 
 towards perfection. The honest is incoercible and is 
 realized through the development of freedom, becoming 
 a desire and aspiration of the finite towards the infinite. 
 The useful is the matter of the just ; the honest consti- 
 tutes its form. In this theory, morals have no real 
 eudemonological content because the idea of the honest 
 does not comprehend the useful and conservative. The 
 honest is absolute, ideal, a priori, an object of deduction. 
 The useful is relative, sensible, a posteriori, an object of 
 induction. And yet moral good should have a mate- 
 rial, sensible basis, which is had in pleasure and the 
 useful in the broad sense. The perfecting of man is not 
 possible without conservation that has an ethical 
 meaning, and therefore should be regarded by morals. 
 The honest, as well as the just, is a human idea and 
 determinable through deduction and induction. Morals 
 have their relative side as has law, and both are parts 
 of the science which is, according to Vico, philosophy 
 and history. The difference between law and morals 
 in this theory is fundamentally the same as Rosmini 
 points out, because law is born of the union of the useful 
 and honest, while morals take nothing from the useful.
 
 INCREASE IN THE FIELD 253 
 
 127. Increase in the Field of Law. As time goes 
 on, the objects and relations subject to law increase 
 in number and grow more intricate and complicated. 
 Law governs objects which were first in the juris- 
 diction of morals. In our day, for example, habitual 
 drunkenness and cruelty to animals are punished, 
 while such acts in the past fell under the control of 
 morals. This does not show that law is little by little 
 absorbing morals but means that in its self-explication, 
 it subordinates those relations to itself which are ration- 
 ally within its sphere. ' It is not law which is gaining 
 ground to the injury of morals, but it is merely taking 
 possession of all its estate. On the other hand, the more 
 the sphere of law increases and extends, the greater 
 becomes that of morals, which is also governed by the 
 laws of evolution. The internal freedom and autonomy 
 of moral subjects are more developed as the intimate 
 ethical relations multiply and develop. Here it is that 
 the character of the person is concretely shown and, at 
 the same time, the great difficulties of the slow formation 
 of his nature and temperament appear. External and 
 internal liberty are developed as sentiments grow higher, 
 and ideas come nearer the true, the good, and the just. 
 Man's power is bounded only by his will, and his will by 
 his knowledge. Buckle and Spencer do not agree in 
 this. Buckle taught in his "History of Civilization in 
 England" that ideas alone are obedient to the laws of 
 progress and that moral sentiments and will are station- 
 ary. Spencer states that knowledge does not determine 
 conduct because man himself ' acts in contradiction 
 to what he has learnt, and that on the contrary 
 action and habit depend on sentiment. But the theory 
 of Buckle paralyzes the spirit-making movement of 
 thought, and a subsequent change of will impossible, as 
 if the will was not thought, mind, and practical reason.
 
 254 LAW, MORALS, AND SOCIAL SCIENCE 
 
 Buckle is in the position of him who admits the entire 
 action of the nerves of sense and yet denies the reflexive 
 phenomena and the transformation of sensation into 
 movement or tendency. He has fallen into this error 
 because he based his argument too much on the fact 
 that reflection remains identical or changes but little in 
 the moral world, and has not put a true valuation on 
 what new change there is. Without doubt, the most 
 important elements of the cosmos and of human nature 
 change little in relation to the other elements, but there 
 change has more value. The head of the organism 
 changes little in comparison with the arms and legs, 
 but when change takes place it is greater in importance. 
 The mind changes more than the will which represents 
 the essence of the person, but a change of will is more 
 important to human life. And this is what is true 
 in Buckle's often erroneous theory, as shown by the 
 continuous variability of customs and sentiments. 
 Spencer disagrees with Buckle's chief idea with argu- 
 ments that really confirm it. To say that the mind does 
 not determine conduct, because man often acts in con- 
 tradiction to what he has learned, is to apply a wrong 
 test, because in such cases the ideas are always the guides 
 of action. The ideas are old (opinions born of senti- 
 ments, passions, and interests of another historical 
 period) but in the end they are always ideas or guides 
 of conduct. It cannot be denied that ideas of themselves 
 are often weak and inefficient, and that strength and 
 vitality come from the passionate reason or impulse. 
 But the impulse would be blind and casual if it were 
 not directed to its purpose by the mind which is active 
 through sentiment. Stuart Mill writes that to hold the 
 above thesis is equivalent to stating that a boat reaches 
 its destination by the force of the steam and not by 
 that of the fire. The stimulus of sense or impulse
 
 ETHICS A SOCIAL SCIENCE 255 
 
 is like the steam while the intellect can be likened to 
 the fire. 
 
 128. Ethics are a Social Science. It has been 
 shown that ethics are active in a social and political 
 life understood in a broad sense. 1 This is the thought 
 of the Greek philosophers and especially of Aris- 
 totle; among the moderns, Hegel teaches that the 
 effective ethical spirit presupposes not only the bare 
 conformity of the act to the law of good but demands 
 conviction in the good itself, of itself, and for itself, 
 because there can be respect for law without such a 
 conviction and there can be such a conviction without 
 respect for law. This conviction, however, should not 
 be shown in a subjective, accidental, and fugitive 
 manner but substantially, necessarily, and stably; that 
 is, in ethical habit, custom, the common course of events 
 and the Ethos. The Ethos is the community of minds; 
 it is a conscious and free state and should not, therefore, 
 be considered as a simple substance or indifferent unity 
 of individuals, but as a subject,, spirit, or person. As 
 soon as the community appears as the result or effect of 
 the aggregation of individuals, it is present immedi- 
 ately in the form of a cause by which the individuals 
 themselves adhere to the union, since the community 
 cannot be regarded as a simple substance, but must 
 be regarded as a subject or person; and it follows that 
 the individuals are not reducible to mere method, to 
 pure accident. The subject is at first family (a union 
 based on sentiment), it becomes civil society (a unit 
 of relations and individual or domestic interests), and 
 finally it becomes the State, the community in which 
 reason is all-supreme. 
 
 129. Vico Believed in a Social Science. Now com- 
 mon life or society, in which ethics are realized, 
 
 1 Cf. 123 ante.
 
 256 LAW, MORALS, AND SOCIAL SCIENCE 
 
 is the object of a particular science in our day. 
 The conception of a social science was not foreign 
 to the mind of Vico, though he declared in the 
 "Scienza Nuova" that he wished to consider God as 
 provident in moral and political affairs; that is, in civil 
 customs; and that he believed such a theory possible 
 because this civil world is made by man, where- 
 fore its principles can be found, as they should be, 
 within the modification of the human mind itself. 
 According to the Neapolitan philosopher, knowledge and 
 action in God are the same thing; and man partakes 
 of the divine nature. The difference between man and 
 God is that man has made this world, according to his 
 principles, without knowing it, and even in the belief 
 of doing exactly the contrary. It is the benevolent 
 wisdom of Providence who has used man's natural 
 customs and from their particular and restricted inter- 
 est has brought forth such ample results adapted to the 
 preservation of the human race. Men wished to avail 
 themselves of bestial lust and to scatter their seed, but 
 the result of their attempt was the chastity of marriage, 
 whence came the family ; the patriarchs wished to exer- 
 cise unlimited paternal control over their clients, and 
 cities grew up ; the nobles wished to abuse their freedom 
 as lords over the masses and fell into the slavery of law, 
 which has resulted in popular liberty. What did all 
 this was mind, because men accomplished it with intelli- 
 gence. It was not Fate, because they did it through 
 election. It was not Chance, because they have pro- 
 gressed through continuous action. The Providence of 
 Vico is not an arbitrary and transcendental principle 
 upon which it is not possible to found a science, but is 
 present in custom. It is eternal reason and does not 
 act upon man in immediate, incomprehensible, and mir- 
 aculous ways. It creates everything through natural cus-
 
 BEGINNING OF SOCIOLOGY 257 
 
 torn and works always for the elevation of human nature, 
 and constantly increases the wealth of its developments. 
 Vico, in describing the action of Providence, lays empha- 
 sis upon the intimate laws of man's nature and mind. 
 This description renders clearer still the generous truth 
 that the civil world is surely made by men, and that 
 therefore they can understand the science of it. 
 
 130. The Beginning of Sociology. Suessmilch and 
 the physiocrats recognize more or less the possibility 
 of a social science. Suessmilch was the first to dis- 
 cover a fixed order in the quantity of social facts, 
 such as births, marriages, and deaths. This order 
 is intrinsic in the facts although it has a provi- 
 dential character. And here we see a providence 
 that works through man with ordinary means, one 
 that cannot be called an entirely transcendental prin- 
 ciple for certainly the providence of Oettingen, who is 
 of the school of Suessmilch, is not transcendental. 
 Mercier de la Riviere and Dupont de Nemours 
 speak of a natural order of society, especially 
 when they show the intimate relation between 
 economic and other social phenomena. But the 
 credit for having clearly and precisely distin- 
 guished sociology from the other sciences and for giv- 
 ing it its right conception belongs to August Comte. 
 the head and founder of the positivist school. Sociology 
 is, in his mind, the final science, which is immediately 
 founded on biology. It is divided into social statics 
 and dynamics. Statics is the theory of relations, and 
 dynamics of progress. Simple 'biology in the concep- 
 tion of the Comtian school, as developed by Littr6 in 
 "La Science au Point de Vue Philosophique," can hardly 
 explain the more or less marvelous associations of cer- 
 tain inferior animals and the phenomena of gregarious- 
 ness among the higher animals, and cannot at all explain
 
 258 LAW, MORALS, AND SOCIAL SCIENCE 
 
 social and historical evolution depending upon the 
 faculty which the common life has of creating groups 
 of things which can and must be learned. Such a 
 faculty is expressed in traditions, monuments, and 
 writings, and can be considered in four successive stages: 
 in that of need; in that of relations of man to family, 
 society, and the natural forces by which he is dominated ; 
 in that of poetry and art; and in the last, of abstract 
 knowledge. The creation of an inheritance of knowledge 
 is purely sociological, Littr points out, and there is 
 nothing in biology which can take its place. Custom 
 and heredity can aid social evolution but cannot create 
 or direct it. Quetelet regards sociology as a social 
 physics. Spencer in the book we have cited, 1 Schaffle in 
 "Bau und Leben des Socialen Korpers," Lazzarus and 
 Steinthal in "Zeitschrift fur Volkerpsychologie und 
 Sprachwissenschaft," look upon it as a social physiology 
 and psychology. Buckle, Lubbock, and Tyler in his 
 "Primitive Culture," whom Bagehot follows, see in 
 such a science a natural history of humanity from the 
 primitive savage state to the later phases of civili- 
 zation. Letourneau in his "La Sociologie d'apres 
 1'Ethnologie" bases it on ethnography. De Roberty ap- 
 proaches Comte and Littre in his "Fragments de Philo- 
 sophic Positive et de Sociologie Contemporaine." The 
 legitimacy of a psychology of peoples or society has no 
 place in the discussion, because many psychological 
 phenomena found in life and history are not explicable 
 by the activity and attitudes of the individual psyche 
 and are illustrated only through the principle of a 
 social or national psyche. Vico pictures this psyche 
 as a live and not a blind form, since chance has not 
 diverted or fate forced men from their primitive natural 
 course, in which they availed themselves of the suitable 
 
 1 Cf. "Justice," cit. 109 ante.
 
 SPENCER THE GREAT SOCIOLOGIST 259 
 
 and ready material to make their republics in which 
 they were active both in mind and body. The ready 
 materials were suitable religions, suitable languages, 
 lands, names of people and things, suitable arms and, 
 therefore, suitable empires, suitable masters and laws, 
 and with these suitable elements there were real freemen, 
 and because of the real freemen true republics or States 
 were constituted. 
 
 131. Spencer is the Great Sociologist. Spencer is the 
 philosopher who has finally presented the largest and 
 fullest work on sociology, the study of the reciprocal 
 relation between the human units and their aggregate, 
 of which he shows the structure, growth, development, 
 and functions. The common action of men, which 
 is the origin of society, depends upon the general 
 character of human nature and upon characters peculiar 
 to the different races and individuals. Social science 
 has obstacles of three kinds, objective, subjective, and 
 mixed. The objective difficulties arise from the great 
 complexity of social phenomena, their indefinite number, 
 and their great diffusion in time and space. The sub- 
 jective difficulties are derived either from the intelligence 
 of the observer, as from his automorphical inclinations, or 
 from a disposition to contribute facts conforming to his 
 ideas and feelings and from a lack of large comprehension, 
 or else arise from sensibilities, as hate, love, or impatience. 
 Those of the third class are caused by the different 
 positions in which the observer is found, whence arise 
 prejudices of patriotism, class, party, or creed; partizan- 
 ship, which Spencer analyzes accurately in "The Study of 
 Sociology." Super-organic or social evolution, Spencer 
 states in "The Principles of Sociology," is determined 
 partly by external circumstances and partly by the 
 nature of the units in the humane aggregate. The ex- 
 trinsic factors are climate, the conformation of the
 
 260 LAW, MORALS, AND SOCIAL SCIENCE 
 
 land, its composition, and the flora and fauna. The in- 
 trinsic factors are referable to the constitution, senti- 
 ments, and intelligence of the men composing the 
 society. In primitive times, the extrinsic factors were 
 predominant; in civilization the contrary is true. Be- 
 sides the original extrinsic and intrinsic factors we must 
 recognize secondary or derivative factors, the products of 
 the social evolution itself, such as increase in population, 
 reciprocal influences of various social bodies, and philo- 
 logical, scientific, juridical, and political progress. Sociol- 
 ogy is the most complex of all sciences and presupposes 
 all of them, more particularly the studies most closely 
 related to it, psychology and biology, because psycho- 
 logical and physiological facts arise immediately in 
 society. It can be gathered, by analogy from the 
 individual organism, that society is an organic being. 
 The social aggregate grows as all vital bodies grow; its 
 progressive increase in volume is accompanied by com- 
 plications of structure and a greater division of functions 
 together with a more extensive and accurate coordina- 
 tion. Anyone can prove these statements by comparing 
 the structure and coordination of the offices of primi- 
 tive society with the constitution and development of 
 functions in a progressive society. Society is composed 
 of vital elements; that is, of human individuals, as the 
 living body is the union of other vital individualities. 
 The globules which move in the blood and the epithelian 
 cellules which detach from the animal and continue to 
 live in water are proof of this. Society remains while 
 individuals appear and disappear and institutions, even, 
 vanish; as the organism remains while the blood, the 
 skin, and the cellules are continually renewed. Society 
 has three main attributes, the productive, the regulative, 
 and the distributive. The productive or digestive is 
 essentially industrial and changes the raw material into
 
 SOCIOLOGY THE SOCIAL PHILOSOPHY 261 
 
 alimentary substances. The regulative gives society 
 its relation to the external world and other aggregates 
 and serves for defense and protection. The distribu- 
 tive is represented by the means of exchange and trans- 
 portation and connects the first attribute with the second, 
 as the animal has an internal apparatus for alimentary 
 substances and external apparatus, which puts it into 
 communication with what is foreign to it, and a vascu- 
 lar apparatus, whose duty it is to connect the two. 
 The productive and regulative apparatus, and in general 
 the internal and external apparatus, are closely connected 
 and reinforce one another but are more distinguished 
 as we ascend in the animal and human scale. The 
 same is true of the distributive which develops only 
 when the complication and distinction of the two 
 others is full and complete. Society, as all individual 
 organisms, is subject to the laws of the struggle for life 
 and of competition in its amplest sense. 
 
 132. Sociology is the Social Philosophy. It has 
 been pointed out that sociology, understood as a science 
 which studies the social organism in all its elements 
 and forms, showing its structure, development, and 
 functions, is a kind of encyclopedia which absorbs the 
 various social studies and cannot be the object of 
 research or meditation for a single mind. Sociology is 
 not possible, says Vanni in his "Prime Linee di un 
 Programma Critico di Sociologia," unless it is under- 
 stood as the philosophy of the social sciences, a general 
 doctrine comprehensive of the first principles of the 
 social sciences systematized with respect to individual- 
 ity and the particular competence of each unit, and with 
 a due recognition of the fruitful law of a scientific divi- 
 sion of labor. The study of the diverse forms of the 
 social fact belongs to social studies. Sociology is the 
 pursuit of fundamental and supreme laws that have to
 
 262 LAW, MORALS, AND SOCIAL SCIENCE 
 
 do with the structure, function, equilibrium, move- 
 ment, and development of the social organism conceived 
 in its integrity ; the particular social sciences are limited 
 to the order of phenomena which concerns each, inves- 
 tigating only the laws adherent thereto, and are not 
 obliged to elaborate a general theory of society, which 
 is the exclusive duty of sociology, as Stuart Mill pointed 
 out. The social sciences have the same relation to 
 sociology that all the particular branches of knowledge 
 have to philosophy, which is the search for supreme 
 principles and the connecting point of the mother- 
 ideas. Spencer and Schaffle have said nothing about 
 this, Comte is more preoccupied with sociology than 
 with the social studies, but Stuart Mill and, among 
 the Italians, Vanni have seen this relationship. Sociology 
 as a philosophical theory is called upon to apply cosmic 
 laws to the phenomena of common life by determining 
 their modality in relation to proper forms and char- 
 acter. Society is an ethical organism that develops in 
 history. It is an ethical organism because the whole 
 and its elements are conscious and free persons, exist- 
 ing as reciprocal ends and means. It develops in history 
 because its life is the evolution of human nature. Society 
 is not a mere biological and physiological product, and 
 its progress, therefore, does not consist simply in a com- 
 plexity of organic and psychic variations. It is an 
 ethico-historical production, and an emergent and not 
 a resultant fact, and its movement and progress are 
 synonymous to civilization ; that is, to the predominance 
 of the spiritual over the natural factors in human reality. 
 Social progress is more than the super-organic evolu- 
 tion of Spencer; it is development in time; it is his- 
 torical dynamism. From this it can be seen that 
 society cannot be explained by biology and psychology. 
 The proper quality of the social being, as an ethico-
 
 THE AGGREGATE AND THE UNITS 263 
 
 historical organism, is beyond the competence of these 
 two sciences. We must remember that new forms in 
 evolution, on one hand, include the precedent forms, 
 but, on the other, present a specifically higher character. 
 The abstract doctrine of identity and of a single force 
 cannot give a satisfactory explanation, because by 
 these only the quantitative and not the true qualitative 
 differences are shown. The progress of their growth 
 and their constantly more perfect qualifications in more 
 complex forms still remain obscure. 
 
 133. Sociology Must Regard the Aggregate and the 
 Units. If we admit the analogy, shown by Spencer, 
 between society and an organism, we are forced to con- 
 clude that it is a living entity in the true sense of the word , 
 but we must not forget that society is a whole, an ethical 
 organism. Man in the abstract, to use the Platonic 
 phrase, is the result of the intimate union of human 
 elements of definite persons who are ultimate in them- 
 selves. In the ethical community, the individuals are 
 collected and united and reciprocally strengthened 
 (Trendelenburg says), while the whole is organized in 
 its parts and is divided in the individuals. The idea of 
 strengthening includes the increase of the energy of the 
 individual through the individual for his particular 
 ends; that of organization implies the realization of 
 universal thought and purpose through the whole. 
 The strengthening and organization should proceed 
 with conservation. A strengthening in contradiction 
 to organization is the predominance of selfish and des- 
 tructive interest ; an organization hostile to strengthen- 
 ing means sacrifice of the parts. If society is an ethical 
 organism, the analogy and application of physical and 
 physiological laws should be received within the limits 
 and under the control that we have pointed out before 1 
 
 l Cf. 61 ante.
 
 264 LAW, MORALS, AND SOCIAL SCIENCE 
 
 in relation to the laws of evolution. We do not deny 
 the existence of a social physics or physiology, but 
 we mean that both enter into ethics and cannot 
 be otherwise considered. The same can be said of all 
 those chapters of sociology that are based on biological 
 studies, as can be seen from the work of Schaffle and 
 others. 
 
 134. Law is a Part of Sociology. Now the rela- 
 tion between the human units and their aggregate, 
 the structure, development, and functions of the latter, 
 have a juristic aspect in that they refer to the action 
 of the individual and of the aggregate itself and 
 realize externally the law of good. Law in such a 
 case is, as it is in all cases, the proportion or norm 
 and protection. On one hand, it is the principle through 
 which the assignment of their due is made to the social 
 elements and the whole. On the other hand, it pre- 
 vents, by its guardianship, the development of life of the 
 part and the aggregate from being disturbed. The 
 ethical organism demands singular and collective activ- 
 ity or human action and is, therefore, subject to the rules 
 of law, the right measure of strength and organization. 
 Philosophy of law is, therefore, the study of the high 
 est principles of the social organism, contemplated 
 especially in respect to human activity. It is not pos- 
 sible to effect the proportion allowed by reason, which 
 is law, and to apply it to the phenomena of common 
 life without knowing the intimate structure, functions, 
 and laws of the development of society. Neither can 
 it be denied that justice enters in the composition of 
 the social elements and forces, although it may be a 
 secondary and derivative factor. Justice is such a fac- 
 tor in the sense that the ethical principle appears after 
 the elements of sense but, nevertheless, has more intrinsic 
 value.
 
 SOCIOLOGY MORE THAN PHILOSOPHY 265 
 
 135. Sociology is More than a Philosophy of Law. 
 Ardigo in "Morale dei Positivisti" and "Sociologia" 
 considers the natural formation of justice as the mark of 
 the social organism. Justice, for him, is the specific 
 force of such an organism and is explained in conformity 
 with social ideas, based on the nature of man who 
 wishes to act freely in accordance with the dictates of 
 reason. From this point of view, sociology itself is 
 reduced to the philosophy of law. But without wishing 
 to admit such an identification, it cannot be denied that 
 the bonds between the two sciences are intimate and 
 substantial, since one presupposes the other. Philos- 
 ophy of law, conceived as a genetico-evolutionary doc- 
 trine, as a theory based on the human idea of law, 
 must study all social elements which enter into the natural 
 formation of the juridical fact and its idea. The juridical 
 fact is essentially a social fact since law is not possible 
 out of society. It is the chief social fact looked at from a 
 particular point of view, from that of the external relation 
 between man and man and man and things, in which 
 the human good is realized in conformity with the laws 
 of proportion and the principles of protection. If this 
 is the nature of the juridical fact, it is clear that the 
 philosophy of law as the pursuit of the knowledge of 
 such a fact and as a practical science tending towards 
 perfection, cannot disregard the social elements and 
 ideality that the civil community works for, of which 
 Ardigo speaks. The profound belief of Vico about the 
 two sources of natural law and his analysis of the neces- 
 sity and utility of social life is again in point. Law is 
 born and developed in society. It is transformed by 
 society and works always for the attainment of the 
 ideal which human knowledge indicates. Sociology, or 
 the science which systematizes the fundamental ideas 
 of separate social studies, cannot for its part contem-
 
 266 LAW, MORALS, AND SOCIAL SCIENCE 
 
 plate the social organism in its integrity without 
 storing away the supreme principles of law. The 
 philosophy of the social sciences and the general 
 theory of society presuppose the philosophy of law, 
 because without law, society is incomprehensible.
 
 THE STUDY OF ECONOMICS 267 
 
 CHAPTER IX 
 LAW, SOCIAL ECONOMY, AND POLITICS 
 
 THE SOCIAL-ECONOMIC REGULATIONS AND THE ANCIENT 
 AND MODERN PHILOSOPHERS OF LAW. ETHICS, SOCIOLOGY 
 BASED ON BIOLOGY, POLITICS, AND HISTORY AS HYPOTHESES 
 OF ECONOMICS. THE CHARACTER OF THE ECONOMIC FACT. 
 THE RELATIONS OF LAW AND ECONOMICS. THE CONCEPT 
 OF POLITICS. POLITICS, THE SOCIAL SCIENCES. ETHICS, AND 
 LAW. THE FULL MEANING OF THE STATE. 
 
 136. The Beginning of the Study of Economics. 
 Grotius, Vico, and Kant did not study the social-eco- 
 nomic order in its relation to the supreme rationale 
 of law. It can be said in general that the first writers on 
 natural law paid exclusive attention to the essential 
 rights of the person, and did not attend to the nature 
 of the things over which human activity extends. The 
 science of economics was not born in those days, but 
 was only about to make its appearance. Wolff alone, 
 in his "Jus Naturae Methodo Scientifico Tractatum," 
 speaks of business, immigration, population, and men- 
 dicity. After him, the next philosopher who treated 
 in a masterly manner the relation between our study 
 and social economy was Romagnosi, who changed the 
 most certain economic principles into arguments of 
 rigorous and indispensable law and of natural and neces- 
 sary duty. In his mind, economic perfection began with 
 agricultural life demanding individual and stable prop- 
 erty, tending to procure through the equality of law larger 
 and more equitable diffusion of pleasure. Its base is
 
 268 LAW, SOCIAL ECONOMY, POLITICS 
 
 the conception of commercial liberty, which is 
 "axiomatic," as he says, "in public and private law," the 
 equal distribution of taxes and class separation, its 
 result the diffusion of social value over the greatest 
 number or the acquisition of the capacity of produc- 
 tion. The State has the power of intervening in per- 
 sonal affairs which lead to the gradual destruction of 
 the many to the advantage of the few. 
 
 137. The Early German Economic Philosophers are 
 Forgotten. Hegel, Trendelenburg, and Ahrens considered 
 the economic order of society in relation to rational law. 
 Hegel speaks of public wealth, labor, social classes, 
 the price of merchandise, pauperism, immigration, and 
 the control of corporations. Trendelenburg treats of 
 agrarian and forestry laws, of the law of the arts and 
 of commerce, of exchange, insurance, wealth, and popu- 
 lation. Ahrens studies the economic aspect of every 
 philosophico-juristical theory. The new German econ- 
 omists, however, no longer have recourse to Hegel and 
 Trendelenburg. They cite Ahrens with great considera- 
 tion to show the connection between economics and the 
 modern philosophy of law. The socialists alone sometimes 
 remember the name of Hegel. The chief reason for this 
 is found in the widely different nature of their writings. 
 In the books of Hegel and Trendelenburg, philosophy 
 is the prevailing factor; those of Ahrens abound in de- 
 tails; and the speculative elements have not a large 
 development. Hegel and Trendelenburg are not jurists 
 in the true sense of the word. Ahrens is more jurist 
 than philosopher. Yet there is a second reason. The two 
 philosophers have been condemned as metaphysicians by 
 the positivists, who have a large following among those 
 who like an easy philosophy. After the condemnation, 
 no one cares to see whether their ethical, juristic, and 
 economic ideas conform to the actual movement of
 
 AHRENS' THEORY OF ECONOMICS 269 
 
 the studies about wealth or not. Ahrens, on the con- 
 trary, has been able expressly to adhere to this move- 
 ment, thanks to which whatever little metaphysics is 
 attached to his doctrine is condoned. 
 
 138. Ahrens 1 Theory of Economics. The adherence 
 of Ahrens to the recent movement of economic science 
 is clear. Economics, this author writes, are an ethical 
 science that is governed by the principle of the 
 good, which man should attain by his own forces 
 aided by those of nature. Man is the subject and 
 end of wealth; man is individual and social and there- 
 fore economics tend to express the law which guides 
 individual and collective action in production, exchange, 
 distribution, and consumption of wealth. Economic 
 laws are not identical with physical laws because the 
 moral and social laws of which the first are part refer 
 to man, the free being. Ahrens disagrees with the 
 theories of Kant, Smith, Bastiat, and Buckle about 
 the office of the State, because it appears to him 
 abstract and negative; and he shows that this great 
 personality is constructed not only for the security of 
 persons, and goods and chattels, but for culture and 
 civilization. The State, according to Ahrens, should 
 remove the difficulties in the way of the full develop- 
 ment of the actions of individuals; should even help 
 in a direct positive way. 
 
 139. Hegel's Economics. Reading Hegel's "Grund- 
 linien der Philosophic des Rechts," it seems at first 
 that he accepts the conception of the absolute and 
 fatal coincidence of private and general interests 
 and likens the economic to simple natural laws. 
 In fact, he says, that except for the family, the 
 moral world presents itself as a complexity of atoms 
 because the common interest in domestic society is 
 resolved into many particular interests, which, how-
 
 270 LAW, SOCIAL ECONOMY, POLITICS 
 
 ever, can be reduced to unity in that they aid and help 
 one another spontaneously. There is in the antagonism 
 of the individual interests a complexity of universal 
 and necessary relations. In this, there appears some- 
 thing similar to the grandeur of the planetary system 
 in which the eye perceives only irregular movements 
 while scientific research determines them with accuracy. 
 When we consider the theory of Hegel concerning 
 the community and civil society, we must change our 
 judgment, because economic laws are for him social and 
 civil, and reducible to ethical laws. Civil society is the 
 form of the ethical spirit, according to Hegel. Eco- 
 nomic laws are moral laws but regard the vegetation 
 of political bodies, as they say to-day, or the sum total 
 of things destined for the satisfaction of needs. This 
 is certainly ethics, but natural ethics, which are very close 
 to social statics and not very far from biology. This is 
 clear because it is not contradictory to speak of ethical 
 laws and emphasize at the same time their unknowa- 
 bility and spontaneity. The natural spirit, as such, 
 has the characteristics of a spirit. For Hegel, the State 
 has not only the office of protecting persons and chattels, 
 but tends as well to rule the moral world and to realize 
 the ends of culture and happiness without destroying 
 the principle of individuality which is shown in the free 
 exercise of a business, profession, and of activities in 
 general. Trendelenburg distinguishes two kinds of 
 theories, the natural, economic theory, and the political 
 in the old sense of the word. The first, founded by 
 Adam Smith, has its origin in the energy which takes its 
 impulse from the physical and moral needs of the indi- 
 vidual. It recognizes no other value than the price of 
 merchandise, and looks upon the State as only a pro- 
 tector. The second holds that the value of individual 
 activity depends upon the internal object of the State,
 
 ECONOMICS CONSIDERED 271 
 
 which represents the ethical whole and must preserve 
 the elements of culture and education from the harms 
 of the variable and illusory price of merchandise. Both 
 theories are insufficient, unilateral, and exclusive, be- 
 cause the first regards economic value and the second 
 political principles alone. We must have recourse 
 to a higher doctrine which will conciliate the extreme 
 theories. Such a doctrine gets its name from the ethical 
 organism, in which the part lives the life of the whole, 
 but has its own personality. The part is the individual 
 and the whole is man in the abstract, in the form 
 of a people. Trendelenburg refuses to accept the 
 idea of the State formed under the influence of indi- 
 vidualism, and considers it as a high personality destined 
 to develop all the human powers. 
 
 140. Economics were Considered Without Ethical Con- 
 tent. We may note that the great number of writers until 
 a few years ago thought economics a science entirely 
 separate from ethics, politics, and history. According 
 to these philosophers, whose leader was Pellegrino Rossi, 
 one can and should pay attention to the principles of 
 this study only in the application of the economic theory 
 in the empirical spheres of art and not in the field of 
 the pure science of wealth. To-day opinions are changed ; 
 the politico-social school speaks of the ethical principle 
 of economics; the positivists reduce it to a chapter in 
 sociology founded on biology and theories of evolution; 
 and the historical school wishes to change it into a 
 science of facts. Opposed to these three innovating 
 schools there are a number of economists who defend the 
 old conceptions with vigor. Do the three schools respect 
 the independence of economics with their doctrine 
 and their method? Or is this independence better 
 preserved by the followers of the classical school ? Cer- 
 tainly, economics are the science of wealth which de-
 
 272 LAW, SOCIAL ECONOMY, POLITICS 
 
 pends, however, on the element of human nature and 
 physical, biological, social, and political conditions, and 
 in general upon historical factors. Economics must, 
 therefore, be based on a complexity of agents and 
 show the latter's influence on wealth, but should not 
 study them especially and by themselves and draw 
 their nature from them, because this would be usurp- 
 ing the office of the other sciences. To the economist, 
 such causes represent merely a series of presuppositions. 
 If ethics, sociology founded on biology, politics, and 
 history are considered only as presuppositions, the 
 autonomy of the science of economics is in no wise 
 injured, because autonomy does not mean isolation. 
 But if these studies are confused with economics in 
 such a way as to make the latter a civil ethics, a true 
 sociology or political science, a branch of natural his- 
 tory or even of technology, economic history or statis- 
 tics, the independence of the science of economics is 
 denied. This point should be developed fully because, 
 although it is not a proper subject for the philosophy 
 of law, still it serves in the formation of an adequate 
 conception of an important science which has multi- 
 fold intimate connections with the law. 
 
 141. Economics Have an Ethical Content. Economics 
 have for their object wealth. Wealth is referable to the 
 activity of man, and therefore political economy is 
 essentially a practical science. Now the most prac- 
 tical science is ethics, which considers the law of 
 work in respect to its natural end, which is the good 
 or the perfection of the person. From this it follows 
 that economics are part of ethics understood in the 
 broadest and most universal sense. In the conception 
 of wealth is included the conception of human nature, 
 its ends, and perfection. In reality, wealth is chattels 
 or things which satisfy our needs and can be exchanged
 
 ECONOMICS ARE ETHICAL 273 
 
 or are objects of work. It is evident that wealth is not 
 conceivable without the act of man, without his activity 
 creative or productive of the means of satisfaction, 
 and without such means, consisting of objects capable 
 of exchange. But our needs, activity, and objects 
 cannot be understood without their relation to the ends 
 of human nature and their reciprocal coordination and 
 subordination, because the ends constitute a true host 
 in which each occupies his position that deserves the 
 exercise of the power of man which is applicable thereto. 
 In the fulfillment of these ends, thus bound together, in 
 the satisfaction of the tendencies of sense and mind 
 lies happiness which contains pleasure and duty, and 
 represents the state of perfection. Aristotelean well- 
 being, or happiness, is human well-being, the object 
 of ethics, and wealth or economic prosperity is part of 
 it. In wealth there is human well-being in respect to 
 useful and exchangeable things. At this point, we meet 
 the ethical principle of economics, which one cannot 
 disregard and from which one cannot escape without 
 denying the common basis of all practical or moral 
 studies. Neither does this principle lead to the con- 
 fusion of such studies, because it expresses only their 
 proximate nature and nothing more. If economics 
 accomplish the human good in wealth, morals, properly 
 so called, contemplate it in the intimacy of con- 
 sciousness, and law considers it as a measure or pro- 
 portion of advantages, and is a guaranty of the external 
 relations between man and man. Now all these sciences 
 are derivatives of ethics, the true universal practical 
 philosophy. Starting out with this principle, we see how 
 far from true is the doctrine of Rossi, who saw no 
 bond of causality between wealth, prosperity, and moral 
 perfection, and on the other hand, how true is that of 
 Minghetti, who knows that happiness cannot be unac-
 
 274 LAW, SOCIAL ECONOMY, POLITICS 
 
 companied by duty and that economics, the eudemono- 
 logical science, cannot be separated from ethics, to which, 
 however, it should be subordinated. Sometimes it 
 happens that relations not ethical become economic 
 as in the case of the anxious pursuit of immoral objects, 
 but this is the consequence of pathological conditions 
 and of perverted minds and customs. The objects of 
 nature are in such cases inverted, and the economic 
 phenomenon follows its own laws under the impulse 
 given it by man. But if this impulse were always or 
 more generally opposed to ethics, economics would be 
 turned from their object and would no longer be a 
 truly human science. Economics cannot be indifferent 
 to good and evil because man is the subject, to whose 
 nature good and evil are certainly not indifferent. All 
 facts which raise and develop our powers cannot fail 
 to exert an influence over wealth. If wealth presupposes 
 human nature, economics should not be altogether 
 founded upon the tendency to personal interest but 
 should take account (although to a subordinate degree) 
 of other individual and social tendencies, which affect 
 wealth. Among the individual instincts differing from 
 that of interest, the sentiments growing out of a knowl- 
 edge of dignity or decorum, and from the need of freedom 
 and independence, can be distinguished. Among the 
 social sentiments we should place family affection, 
 patriotism, and religion. 
 
 142. Politics are Ethical. Ethics are completed 
 in politics according to the Greek philosophers. As 
 a matter of fact, the good cannot be obtained except 
 in a community in which man acquires knowledge 
 of himself and what surrounds him by instruction 
 or culture, and where he can through education 
 direct his will towards the ends of reason. The com- 
 mon life or civil society is the conditio sine qua non
 
 POLITICS ARE ETHICAL 275 
 
 of true and 'concrete virtue (the object of morals) 
 and of proportion of goods between men, and of the 
 principle of protection in which lies the law. It is, 
 furthermore, the presupposition of economics, a part of 
 ethics in general. Economics have to do with wealth 
 which demands exchange of goods, which in its turn 
 demands trade and the common life. Production is 
 not developed without cooperation and division of labor, 
 two facts essentially social. The circulation and dis- 
 tribution of wealth cannot be thought of except in 
 society. On the other hand, free economic activity 
 would be a mere abstraction without the complexity 
 of social department of safety, health, and education. 
 Sociability furnishes a constantly increasing intel- 
 lectual light, new combinations and powers to the indi- 
 vidual, because it carries on a victorious struggle with 
 nature and deprives her of the advantage of strength. 
 It completes the deficient action of individuals and some- 
 times through its coercive branches promotes agreements 
 to which the particular and general interests would tend 
 too late. In this last case, the existence of society is not 
 a presupposition of economics, but their principle and 
 properly the principle which is applicable to state control 
 in industrial undertakings. But with this exception, 
 generally speaking, there is no doubt that the nature of 
 the laws which govern the social organism are not within 
 the powers of the economist and do not belong to eco- 
 nomics. They are a presupposition for him even if 
 economics are considered as a branch of sociology. 
 Economics are a part of ethics, and should be developed 
 within the confines of the latter science, but that is no 
 reason why all of ethics should be confused with eco- 
 nomics. For the sociological economist, sociology is a 
 presupposition, as the mother science is a presupposi- 
 tion for the derivative science.
 
 276 LAW, SOCIAL ECONOMY, POLITICS 
 
 143. Economics are Biological. Economics are the 
 branch of ethics which is intimately connected with 
 biology and more distantly connected with the other 
 natural sciences. The first connection between eco- 
 nomics and biology is Aristotle's natural Kr^ts 
 that is, the spontaneous appropriative activity, com- 
 mon alike to animals and men, which develops over 
 the objects necessary and useful to the existence of 
 the individual in the social body. For Aristotle, the 
 abundance of these things constitutes wealth, whence 
 it is that his "Ctetics" is put in his "Economics." The 
 Stoics, Cicero, Pliny, Celsus, Albertus Magnus, Thomas 
 Aquinas, and Nifo admit and in places illustrate the 
 fact of the common ownership of such activities by men 
 and beasts. Later the physiocratic school studied fully 
 the correlation between the physical, social, and eco- 
 nomic orders extending the conception of the natural 
 laws. Gioja showed in a confused way the relations 
 of similarity between the economic functions of beasts 
 and the economic facts of man, pointing out the causes 
 of differences. After Gioja, among the Italians, Cog- 
 netti de Martiis collected and put in order all the scat- 
 tered studies on the economic functions of animals and 
 wrote an essay about the types of economic fact in in- 
 ferior races and primitive civilizations; and by the aid 
 of such research tried to establish the initial data of 
 economic sociology, laying emphasis upon the criteria 
 of Ingram. He believed that the office of economics 
 consists in finding the forms and determining the laws 
 of the appropriative activity in all its evolution from 
 zoological rudiments to the highest progress in the life 
 of human species. He looks to economics to show that 
 the conscious adaptation of utilities and needs is first 
 made by the natural organs, then by the aid of tools, and 
 finally by exchange capable of transforming goods
 
 ECONOMICS ARE BIOLOGICAL 277 
 
 into money ; and we know the intimate connection 
 between the economic function of beasts and the eco- 
 nomic fact of man so thoroughly illustrated by the 
 positive school, but we do not admit that the duty of 
 pursuing all the evolution of the appropriative activity 
 from animals to man is incumbent upon the economist. 
 The economist should occupy himself only with the 
 economic functions of man, and presuppose those of 
 animals, the object of biology, only stating the connec- 
 tion between one and the other. It is true that a new 
 product of evolution takes its origin from precedent 
 forms, but it is likewise true that where there is a specific 
 difference it cannot be the same. The new product 
 in such a case should be studied by itself in its own 
 particular elements and differentiating qualities. In 
 economics, the appropriative activity of biology is trans- 
 formed and acquires a new meaning. The needs, 
 energy, and utility of economic functions in the life of 
 beasts are not the needs, activity, and advantages of 
 the economic function of man. The needs of man are 
 not exclusively physical but intellectual and moral as 
 well, not purely individual and collective but personal 
 and social. The physical needs of man are much modi- 
 fied by the influence of mind, and produce various and 
 progressive tastes. Mind is touched with a universality 
 and does not feel bound to a single impression of the 
 moment although it proceeds from knowledge of the 
 particular. Morality is created by the force of will 
 capable of arresting the force of impulse and determining 
 it according to reason. The need of the individual, 
 as such, is not the same as the need of the individ- 
 ual person, neither are the needs of coexistence those 
 of society. We know that a person is more than a 
 simple individual as society is more than coexistence. 
 Furthermore, the activity of man directed by mind
 
 278 LAW, SOCIAL ECONOMY, POLITICS 
 
 develops thought continuously subject to the forces 
 of nature and is essentially personal in concrete and 
 abstract man. The advantages are not simple utili- 
 ties or satisfactions of blind and indistinct tendencies, 
 but corporeal and incorporeal wealth, merchandise, or 
 objects of exchange, which distinguish the society of man 
 from the mutuality of animals. The ethical end or the 
 conception of the perfection of the person of which we 
 have spoken before 1 is apparent in all the elements of 
 the economic fact. For the economists such character- 
 istics of the fact constitute merely presuppositions. He 
 must recognize them but need not develop them in detail. 
 Their development and demonstration belong to other 
 moral studies, as the explanation of the appropriative 
 function in its first steps belongs to the natural sciences. 
 144. Another Connecting Link between Economics and 
 Biology. A second connection between economics and 
 biology is found in the theory of population, because this 
 contains physiological and social elements and is con- 
 nected, therefore, with two orders of conditions and 
 causes of differing efficiencies. There are statistical and 
 economic theories of population. The statistical theory 
 studies population by itself in its intrinsic elements and 
 explains the law upon which its actual methods of 
 existence or states of development depend. The eco- 
 nomic theory regards population in relation to the means 
 of subsistence, and was formulated by Malthus. The 
 two theories are connected, since one cannot fully 
 treat of the state and movement of population 
 without considering social and economic causes, or the 
 relation between existence and subsistence without know- 
 ing the reasons and manner of demographic movements. 
 At present there is a tendency to assign a special and 
 distinct post to the entire study of population. This 
 
 1 Cf. 84 ante.
 
 ANOTHER CONNECTING LINK 279 
 
 new study has been variously treated, under many 
 names, from a social or biological point of view, but 
 the economic theory of population is directly bound up 
 with economics. We must not forget that man is the 
 subject of economics, and that his capacity for multipli- 
 cation cannot be foreign to the social order of wealth. 
 No one is ignorant of the fact that Darwin and Spencer 
 have converted the Malthusian theory of population 
 into a universal law of organic nature. Malthus sees 
 a deep and general cause of poverty in the excess of pop- 
 ulation over the disposable means of support, from which 
 has sprung up a fierce struggle. Before this cause 
 he stops, as Messedaglia points out. Darwin and 
 Spencer consider the inequality and struggle as facts, 
 in which can be discovered the dawn of progress 
 and glimpses of nature itself, and reach a conclusion 
 of the perfection of the species, or at least its slow 
 and gradual transformation. With this premise, it is 
 clear that the economist should consider population 
 more from the social than the biological point of view. 
 He is not called upon to develop a law of organic nature, 
 but to show its applicability to man and especially its 
 limits and control. The universal law is for him only a 
 presupposition. The economist, for example, considers 
 as his biological premise the doctrine of Spencer on 
 population in general, and turns to study especially 
 the laws of human population, as they influence wealth. 
 Certainly all organisms, vegetable or animal, are exposed 
 to destructive and conservative forces which are so 
 composed that the prevalence of one provokes the re- 
 action of the other. If a species is extraordinarily in- 
 creased, it always happens that a predominance of 
 destructive forces will follow; such as a scarcity of 
 food, a restriction of space, or struggles with hostile 
 species. On the other hand, it cannot be denied that
 
 280 LAW, SOCIAL ECONOMY, POLITICS 
 
 the force of preservation develops in an inverse ratio 
 to the generative force, and that where the greatest 
 fecundity is found, there is the least force of self-preser- 
 vation in the generant. The more complex and dis- 
 tinct in itself the organism, and the higher the being 
 in the scale of life, the less is its coefficient of multi- 
 plication. Now, in economics, this biological doctrine 
 is not gone over again, but a regard is had to a specific 
 new limit and a conscious and voluntary adaptation to 
 a preventative re-equaliberation, as Vanni calls it in 
 his "Saggi sulla Teoria Sociologica della Popolazione." 
 This re-equaliberation, no longer organic, that Spencer 
 makes the mistake of disregarding, is foresight, the 
 moral restraint of Malthus, the ethical principle of 
 population. This principle, understood in its entire 
 efficiency, serves to rectify the Malthusian doctrine, of 
 which it is the base, showing the rationale of a fact not 
 rare in times of civilization ; that is, an increase in popu- 
 lation inferior to the increase in the means of subsistence. 
 We know that Malthus states that a corresponding 
 increase of population should follow of necessity every 
 increase of means. This principle is not contrary to 
 the natural and historical laws which deny the possibility 
 of progress that comes from the predominance of those 
 better adapted for the struggle of life; which struggle 
 is the result of the multiplication of mankind beyond 
 the means and limits of subsistence. Furthermore, the 
 struggle does not cease in the increasing development of 
 civilization, neither does the predominance of the more 
 fit decrease. But the struggle changes its aspect; one 
 does not fight any more only for the preservation of life 
 but for every kind of human advantage. The struggle 
 is no longer the savage war for existence of primitive 
 days. It is changed into competition and the pursuit 
 of all the advantages of a more progressive life, in which 
 forewarned is forearmed.
 
 ECONOMICS ARE HISTORICAL 281 
 
 145. Economics are Historical. Economics pre- 
 suppose the laws of human nature. Now human 
 nature is not a quiescence without development, but 
 is urged on by a constant, continuous, and progressive 
 internal movement, due to which it becomes, step by 
 step, what it should be, and approximates its own 
 ideal. This movement is the very life of the human 
 race or history. Economics presuppose also the laws 
 of society which is an organism which moves and fulfills 
 an evolution determined by extrinsic circumstances, 
 such as climate, topography, and by intrinsic factors 
 of a physiological, intellectual, and moral nature, and 
 by factors produced by the same evolution called by 
 Spencer derivative, such as the increase in population, 
 juristic and political progress, and the increase of cul- 
 ture. Since human nature and society move in history, 
 the economic activity of man cannot be subtracted 
 from the laws of progress by which it is divided 
 constantly into multiple functions and acts that 
 have an intimate correlation between themselves. It 
 extends to a great number of things and becomes more 
 intelligent, free, and potent, aided by artificial means 
 of every kind. The science which studies these activi- 
 ties cannot forget the two golden "dignities" of Vico; 
 one, that the nature of things is nothing else than their 
 birth in certain times and in certain manners, and the 
 other, that the study should begin when the matters of 
 which it treats begin. The beginning to which he 
 refers is the human and not the biological. This is the 
 object of the Neapolitan philosopher's severe analysis 
 of the necessity of social life. Hence, economics pre- 
 suppose history. To state that history is a presupposi- 
 tion of economics does not in the least mean to reduce 
 the science of wealth to economic history and statis- 
 tics, to change it into a mere description of facts, or
 
 282 LAW, SOCIAL ECONOMY, POLITICS 
 
 at most to convert it into a kind of philosophical dis- 
 course about the phases of economic reality. Eco- 
 nomics, conceived in this way, would no longer be a 
 science or a research of universal laws or typical forms ; 
 they would become only an empirical collection of con- 
 crete individual phenomena. Reduced to a philo- 
 sophical discourse about the historical phases of wealth, 
 economics could no longer examine intrinsic elements 
 and would be confused with part of the philosophy 
 of history. Now history is a presupposition of eco- 
 nomics in the sense that induction, from social or his- 
 torical facts, is not foreign to history. But it is its 
 beginning and complement, without prejudice to the 
 proper right of deduction, and does not imply the 
 abandonment of universal laws and typical forms. 
 Furthermore, it does not exclude the true or the ideal 
 principle merely because it begins with the certain or 
 the real, for mind proceeds from the particular to the 
 universal. The ideal truth is immanent in fact although 
 it does not appear in it and is not confusable with it. 
 What should be is recognized in what has been and is; 
 the type is seen in the variety and what is eternal is seen 
 in the temporal, to borrow a phrase from Vico. On one 
 hand, it is not reasonable to sacrifice law or duty to 
 phenomena per se contradictory; on the other hand, 
 it is absurd to wander in the empty and transcendental 
 ideals of abstract and formal thought which have no 
 relation to life. In this case, what has been and is 
 does not count in comparison with the immovable 
 universals and rigid types. 
 
 146. Economics Constitute the Condition not the Cause 
 of Society. The economic fact is not original, but derived, 
 as we have seen, 1 from physio-psychical and historical 
 elements and external forces. It is not predominant 
 
 l Cf. 141 et. seq., ante.
 
 ECONOMICS THE CONDITION 283 
 
 in the sense that social life is a function of economics. 
 It is not true that all social facts are born of the eco- 
 nomic facts and that morals, religion, law, politics, 
 and science are its effects. This is the thesis of Marx, 
 Gumplowicz, Loria, and others who forget that the 
 simplest social fact has its origin in many causes and 
 that once produced, reacts on such causes and is capable 
 of modifying them. Heretofore, we have several times 
 laid emphasis upon the great complexity of social pheno- 
 mena, the result of conditions of every sort; physical, 
 intellectual, moral, juridical, political, religious, and 
 historical. In the cosmopolitanism of interest, for 
 example, promoted by free trade or hindered by the re- 
 appearance of protection, we see the ethical conception 
 of the brotherhood of man. This shows that a Chris- 
 tian or pagan economics is always possible although 
 it is absurd to think of a Buddhist geometry or a Moham- 
 medan algebra. Where cosmopolitanism exists, it is evi- 
 dent that it must exert an influence and modify the very 
 causes by which it is formed, and therefore it can be 
 stated that the ethical conception of brotherhood is 
 not the same as it was at first. After the develop- 
 ment of such a fact the conception indicated acquires 
 new elements, and assumes a more concrete and sensible 
 form. If, from one aspect, the economic fact presup- 
 poses the totality of social causes from which it springs; 
 from another point of view, it is the condition for the 
 development of facts belonging to a higher order. It 
 is true that the energy of mind, will, and imagination 
 would not be had if the organic forces, especially those 
 of the stomach, were lacking. If the needs of life had 
 not been more or less satisfied, scientific research, for 
 example, would never have arisen. A determinate 
 manner of distribution of wealth is the presupposition 
 of some juridical and political institutions. But, as the
 
 284 LAW, SOCIAL ECONOMY, POLITICS 
 
 stomach is not the cause of the inspirations of genius 
 or of the strong resolutions of character or of the more 
 spiritual emotions, so the economic fact is the mere 
 condition and not the determinating principle of social 
 life and civilization. This principle is mind or thought. 
 If there is a predominating social factor, it should not 
 be sought in the lower forms of evolution, but in 
 the higher, where there is found a principle that 
 is conditioned on the whole series of precedent forms 
 and nevertheless exerts an influence, modifies each of 
 them, and gives them a greater meaning and value. Only 
 mind is capable of doing this. It appeared last and 
 has need of all the other grades of the series, though it 
 transforms and re-creates them upon its appearance. 
 The criterion for the consideration of the social fact is 
 always restricted to a unilateral method; the entire 
 social fact cannot be considered except with economic 
 elements. Human life and history are not understood 
 in this narrow theory. 
 
 147. Law is Economic. A great part of the con- 
 tent of law is economic matter, because law is the 
 measure, the proportion of advantages, utilities, and 
 wealth. It cannot fail to refer to advantages, but 
 it does not necessarily refer to wealth and utilities in 
 the strict sense. There are ethico- juridical relations 
 which have nothing to do with wealth, interest, and 
 utility as objects and which cannot be given a mate- 
 rial valuation. Here lies the error of the German writers 
 (for example Dankwardt, and Bohm Bawerk 1 ) who wish 
 to reconstruct the science of law on the exclusive basis 
 of economic life. Minghetti, in his work "Dell" Economia 
 Pubblica e delle sue Attinenze colla Morale e con il 
 Diritto," points out that the ancient philosophers had 
 
 1 "Recht und Verhaltnisse von Standpunkte in Volkwartshaftlich 
 Giitenlehre."
 
 LAW IS ECONOMIC 285 
 
 an idea of a cosmic order founded on proportion and 
 wished to make it the type for the moral and civil 
 order. The "ne quid nimis" of the Delphic oracle, the 
 doctrine of numbers of Pythagoras, the dialectics of Plato, 
 the Aristotelean mediety, the "servare proportionem" of 
 Cicero all denote how these philosophers placed this con- 
 ception at the base of science and art, which, raised to 
 the dignity of a dogma and connected with the idea of 
 Providence, holds its own in the doctrine of the Fathers 
 of the Church and the great writers of the Middle 
 Ages, among whom Dante made law consist in propor- 
 tion. Modern experimental science finds the law of 
 proportion in the great movements of celestial bodies 
 or in the most minute combinations of chemical attrac- 
 tion. This law, too, should be considered in a general 
 study of history and in the various parts of all civil 
 sciences. The greatest production, the best distribution, 
 the best trade, the most commodious consumption, 
 and the best coordination of all these factors are ob- 
 tained through the laws of proportion. To maintain 
 the proportion between land, capital, and labor, we need 
 science, diligence, and the habit of sober, hard work. 
 To maintain the proportion between population and 
 the means of existence, we need forethought and wealth. 
 To maintain it between production and the division of 
 wealth, domestic and foreign commerce, cash and credit, 
 we need accurate judgment of offer and demand, 
 truth, and faith; and to maintain it between supply 
 and demand we need the true valuation of goods, 
 temperance, and abstinence. In all these things jus- 
 tice and the respect of another's rights are presup- 
 posed in a well-ordered and honest civil community. 
 Starting out with Minghetti's conception, it is evident 
 that law is a proportion which contains another pro- 
 portion in itself. There is no doubt that law is in
 
 286 LAW, SOCIAL ECONOMY, POLITICS 
 
 Minghetti's mind a proportion of goods, because he 
 thinks the idea of proportion dominates the cosmos, 
 in that it is the object of the physical and moral sciences. 
 Economic proportion cannot be realized without justice; 
 that is, on one hand the measure of mine and thine and 
 on the other a principle of protection. Law is the 
 norm and guaranty of the reciprocal enforcement of 
 individual activities and of the organization of the 
 ethical whole in respect to every external advantage, 
 social utility, and perfection, and therefore in regard 
 to the production, movement, division, and consump- 
 tion of wealth. But wealth is not the only matter of law, 
 but every form of human well-being realized or realizable 
 in external relations between man and man and man and 
 things. The economic content of law is revealed in 
 its three divisions. In private law it is shown in 
 property, and its methods of acquisition, in con- 
 tract, the family relations, and inheritance; in public 
 law, in the relations between prosperity and wealth of 
 citizens, and in political and administrative govern- 
 ment. And in international law, the humanity of nations 
 and justice between peoples, is capable of a future devel- 
 opment and consideration as a consequence of a strict 
 economical calculation, as Antonio Scialoia said. No 
 jurist of these latter days can be ignorant of or fail to 
 take into consideration the laws of economics, because 
 they control a large part of the objects of law and of 
 legislation. 
 
 148. Definition of Politics. Politics, according to 
 the ancients, contain all the science of the State. 
 Plato considers philosophy the royal art and says that 
 politics lies midway between the theoretical and prac- 
 tical studies; and that the politician is a man of 
 science. Aristotle includes in politics all the teachings 
 which have to do with the State. In our own day
 
 POLITICS A SOCIAL SCIENCE 287 
 
 Mohl in "Encyclopadie der Staatswissenschaften," 
 Bluntschli in "Die Lehre vom Unternem Staats," 
 and Holtzendorff in. "Die Principien der Politik," 
 restrict its conception and agree in considering it the 
 science of the ends of the State and of the proper means 
 to attain them. Holtzendorff determines his thought 
 with marked precision, stating that politics are not 
 occupied with the administration of justice, which is 
 the object of the juristic sciences. Among the Italians, 
 Rosmini defines politics in the same way; that such a 
 study should advance social ends and explain the means 
 which the government has in its power in relation to 
 these ends, and the most convenient method of using 
 them. 
 
 149. Politics are a Practical Social Science. The 
 subject-matter of politics refers to a single aspect of 
 the social fact, the one that regards the finality of 
 civil life ordered by the State and the more convenient 
 means to obtain it. Politics are a special science dis- 
 tinct from sociology which, as a philosophical study, 
 considers fundamental laws and includes them in the 
 more general laws of social organization. From these 
 laws it takes the directive principle of the action of the 
 State, that assumes imperative forms which become 
 practical norms. It can be accurately stated, therefore, 
 that politics are not part of sociology, but a practical 
 social science based on the results of the general theory 
 of society. It can be shown by the important con- 
 clusions of Rosmini, which cannot be overlooked, that 
 politics are not part of sociology. Rosmini believes that 
 civil society is a body tending towards a destination, 
 and divides the political rules according to whether they 
 regard the end towards which the social body should 
 move, the laws of its movement, or its forces. We 
 must recall briefly the classes of rules, stated in his
 
 288 LAW, SOCIAL ECONOMY, POLITICS 
 
 "Filosofia della Politica." The rules, treated from the 
 point of view of the result, first can be formulated as 
 follows: Let the government be careful to maintain 
 and develop the prevalent force on which the existence 
 of society depends; the second urges the government 
 so to act that prosperity will produce the proper welfare 
 upon which man relies, because contented citizens are 
 tranquil and quiet. The prevalent force is the result 
 of the complexity of all the physical, intellectual, and 
 moral forces. These latter impress their characteristics 
 upon the physical and intellectual forces and constitute 
 its unity and give it its character. In every society 
 there are four epochs: in the first, existence is given to 
 society and it is therefore concerned with the substance 
 and not the accidentals; in the second, the age of the 
 fulness of social life, the accidentals are considered 
 without losing sight of the substance; in the third, re- 
 gard is had to the accidentals and not to the substance, 
 whence a decay; in the fourth, the accidentals of the 
 accidentals are thought of and the substance of society 
 is forgotten, and all its accidental features are thought 
 true and efficient. This is the epoch in which civil 
 society is subject to great upheavals and turbulent ex- 
 plosions, and can easily fall into ruin. The preva- 
 lent force or the substance of society in one age can 
 consist of physical force, in another of prudence and 
 astuteness, and finally of the principles of justice. The 
 rules, decreed by the nature of social bodies, can be 
 outlined in this formula; that the politics which bring 
 civil society nearest to its natural and regular construc- 
 tion are good, and those which separate it from its nature 
 are bad. The natural construction is the result of an 
 equilibrium between population and wealth, wealth 
 and power, civil power and material force, civil and 
 military power and science, science and virtue. The
 
 POLITICS ARE MORAL 289 
 
 rule which grows out of the consideration of the laws 
 of movement (hinted at but not sufficiently developed 
 by Vico, because of the lack of diverse social trans- 
 formations of various peoples), can be reduced to the 
 following: The political means, that are in harmony 
 with the laws of natural movement of civil society, are 
 good; the others, contrary to its nature, are bad. As 
 to satisfaction, society first tends to existence, then to 
 power, wealth, and pleasure. True satisfaction lies in 
 virtue and justice. The progress of good is one thing, 
 and progress in general is another, as there is a difference 
 between progress and movement which consists of a step 
 forward or back, ahead or across, t>r a mixed kind of 
 progress, the head turned over the shoulders. We 
 must clearly distinguish the movement of humanity 
 in its intellectual development and in the correspond- 
 ing external forms of society, from the moral and eude- 
 monistical movement. The last rule, shown by the 
 study of the direct and indirect forces of society, can 
 be put in this proposition; the political means that 
 with the least expense and trouble effect the greatest 
 social good are the best. The physical, intellectual, 
 and moral forces of a society of a determined period in 
 their reciprocal influence and relation with the social 
 whole can be worked out in proper proportion on an 
 exact scale with politico-moral statistics. 
 
 150. Politics are Moral. The political purposes 
 and means cannot be immoral because they are con- 
 nected with the supreme principle of human welfare. 
 There is not nor can there be contradiction between 
 moral laws and the true utilities or permanent interests 
 of the individual or collective person. The State is 
 an ethical organism, and therefore, its efficacious work 
 should not be opposed to the principles of the honest 
 and just, which are not rigid formulae, but which par-
 
 290 LAW, SOCIAL ECONOMY, POLITICS 
 
 take of the certain and which are developed in life 
 among the vicissitudes of opportunities, becoming 
 always more varied in the different spheres of hu- 
 man activity according to race, age, and place. Poli- 
 tics, like law, are not separate from ethics nor can 
 they be confused, but are simply distinct. If we 
 believe that politics are separate from law, we are 
 governed by two prejudices: by retaining the belief 
 that the art of government has for its object power 
 and the accumulation of material means of control, 
 the selfish utility of the State, the destruction or ruin 
 of other nations; and by confusing public with privace 
 morals. The first iS a denial of the true finalities of the 
 State and of the conception of the moral and juridical 
 communion of peoples, whose humanity is developing 
 step by step if they are adaptable to progress. The 
 second is discordant with the nature of the ethical 
 principle, in that it is applicable differently in different 
 spheres and acquires in each a new significance. The 
 individual, for example, can sacrifice his life, but the State 
 must preserve its life. Murder, assault, the destruction 
 of property, slander, and highway robbery are serious 
 crimes if committed by individuals. In war such acts 
 are permissible for the State, and the State is allowed the 
 power of profiting by illegal or immoral acts; the recep- 
 tion of deserters and the use of spies are acts of this 
 category. A statesman can profit by evil; that is, by 
 avarice, selfishness, vanity, or simplicity. The evil act, 
 however, should be offered and then can be taken advan- 
 tage of, but must not be sought by an honest politi- 
 cian. The art of government or politics, as an art, is 
 not the same as the practice of deceit or bad faith or 
 acts of violence, because it realizes among the various 
 social contingencies the principles of a science which is 
 distinct from ethics, but not substantially opposed
 
 POLITICS INCLUDE STATESMANSHIP 291 
 
 thereto. The art of politics makes statesmen able 
 to recognize the laws of human nature and society, to 
 understand and take in situations at a glance, to measure 
 the proximate and distant results of an act, develop the 
 reciprocal influences of the forces of the State and civil 
 community, and get the greatest profit out of every occa- 
 sion by adapting his conduct to the indefinite variability 
 of events in order to obtain his end and the ideal he has 
 set before himself. So politics have their part in the 
 ideal, because they are a practical study and tend to 
 the perfection of activity and are, in that, like ethics. 
 True politics are not a materialistic, immoral, brutal 
 art, nor a poetic, imaginative, sentimental study, but 
 include high ethical and social objects to be attained 
 by the most opportune, convenient, and efficacious 
 means. All politics, says Schleiermacher, lie in the 
 efficiency of action. Now the efficiency of action con- 
 tains elements of two kinds; elements which have 
 to do with the finality, and elements which stand in 
 relation to efficiency. The finality alone is abstraction 
 and mere exigency; the efficiency alone manifests a 
 causal series of facts, forces related and dependent, 
 by which everything which already exists is developed, 
 but nothing more. 
 
 151. Politics Include Statesmanship. Politics, 
 Bluntschli writes, are the science of the State in 
 that it is alive, and public law is the science of the 
 State in that it exists. Politics are occupied with the 
 ends and means of the State. Public law establishes 
 its legal coordination. It is clear, from this definition, 
 that politics should be in accord with the constitution, 
 otherwise a deep and irrational contradiction is intro- 
 duced into the life of the State. This is true only in 
 the abstract, because in fact a constitution outgrows 
 its usefulness and becomes an antiquated and rigid
 
 292 LAW, SOCIAL ECONOMY, POLITICS 
 
 form. In this case, politics should not be stopped 
 by such a form. Politics, the science of the State in 
 that it lives, tend in such a case to promote the recogni- 
 tion of law in fieri, that incites the collective con- 
 sciousness, and tends to usurp the old law and develops 
 more fully the sources of unwritten law to fulfill and 
 reenforce the written law. A constitution, statute, or 
 ordinance is the effect of the given position of things 
 in a certain state of society at a certain time and has 
 no reason to exist when the position of things is changed 
 and when the state of society is different. For poli- 
 tics, a constitution, statute, or ordinance are so 
 many means, and as such cannot be perpetual forms. 
 It is not right to sacrifice the freedom of generations 
 and the interests of life to the vain and irrational ideas 
 of the past. But aside from this variation and again 
 considering politics and public law of themselves, it 
 cannot be denied that in both studies there is the whole 
 essence of the State, conceived of not only as a high union 
 for objects of law and culture, but also in the form of a 
 civil community founded on the division of classes of 
 individuals having common physical, economic, intel- 
 lectual, moral, and religious interests. The word "State" 
 has two meanings, one broad and one narrow. In the 
 first sense, a State contains civil society; in the second 
 it is as distinct from society as the simple community 
 of interest is distinct from the political community, 
 which is, nevertheless, a personality. The conception 
 of civil society contains all the collective formations 
 which are found between the individual and the State; 
 or rather between the family and the State. The 
 definition given by Mohl, Bluntschli, Stein, and Gneist 
 refers to society thus understood in its strict and proper 
 sense. Even Hegel looks upon civil society as a com- 
 munity of interests bound together, spontaneously
 
 POLITICS INCLUDE STATESMANSHIP 293 
 
 aiding one another, distinct from the family and 
 from the State, and occupying a place between 
 them. When society is thought of as an organism 
 of collective formations and intermediate centres, it 
 connotes a great variety of groups or classes which 
 tend to diverse objects of life and represent common 
 interests. These objects may be physical, economic, 
 intellectual, moral, or religious, according to the means 
 of satisfaction. All are developed separately and even 
 can be in a state of struggle among themselves, but 
 they tend always to interpenetrate and harmonize since 
 they are derived from the activities of man, which are not 
 of their own essence antagonistic. Over such a com- 
 munity of the interests of life rises the State, which 
 is the juridical personality of a people; man in the abstract 
 forms man in the particular of a nation. The State 
 realizes law which comprehends all human nature that 
 develops in social relations. The State can be called the 
 juristic form of the civil union. Furthermore, it is the 
 natural moderator in the struggle of the interests and 
 classes. Hence the difference between the social, politi- 
 cal, and juristic sciences; the first have for their imme- 
 diate object society understood in the broad and proper 
 sense, the second have to do with State, and the 
 third with law. The social sciences indirectly consider 
 the State because it is inseparable from society; the 
 political sciences consider society. We know that 
 the juristic sciences, although they have law as their 
 immediate object, cannot get along without social and 
 political studies. Politics without public law would 
 lack concrete forms and institutions ; public law without 
 politics would be a casual juristic organism; that is, 
 a legal asset not based on knowledge of the finality 
 of the State and the means at its disposal. The real 
 and living State arises from the concrete fusion of
 
 294 LAW, SOCIAL ECONOMY, POLITICS 
 
 politics and public law. The idea of the State becomes 
 philosophical (a human idea, as Vico would say), when 
 it comprehends the State, in that it lives and exists, and 
 when it is a result of elements that are referable to the 
 certain understood in its generality, and to the true 
 regarded in its highest rationale. The State thus con- 
 ceived is the proper object of the philosophy of law, 
 which reforms its unity, divided into politics and public 
 law, and determines its value and places it in relation 
 with the other fundamental notions which form the 
 system of the most universal juristic ideas.
 
 RATIONAL AND POSITIVE LAW 295 
 
 CHAPTER X 
 
 RATIONAL AND POSITIVE LAW. SOURCES 
 AND APPLICATION 
 
 THE DISTINCTION BETWEEN RATIONAL AND POSITIVE LAW 
 IN THEIR NATURE AND IN HISTORY. HABIT AND PRIMITIVE 
 CUSTOM. JURISPRUDENCE AND ITS OFFICE. LEGISLATION 
 AND THE CODES. THE EFFICACY OF STATUTES IN SPACE. 
 THE EFFICACY OF STATUTES IN TIME. THE DIVERSE THEO- 
 RIES OF RETROACTIVITY. 
 
 152. The Difference Between Rational and Positive 
 Law. It has been shown that law is composed of the true 
 and the certain. It is idea and reality, it is a principle 
 of reason which develops in the stages of life adapting 
 itself to the particular condition of the people according 
 to time and place. Law as an intelligible principle 
 does not fully develop in the historical forms in which 
 it is realized, since they do not equal its content, whence 
 the eternal striving for progress that governs institu- 
 tions and laws, urging them to ends more universal and 
 more in accord with reason. Rational law is based 
 immediately on the true, and is universal. The true is 
 developed in the certain, in which lies its proof, when 
 it is generalized and historical, . not considered and 
 studied in its several parts. Positive law, on the other 
 hand, is based immediately on the certain, and has a 
 particular character, since it is the elaboration of popular 
 or national consciousness. The certain is not foreign 
 to the true it is its extrinsification. And therefore 
 ideal elements are found in positive law, as historical ele-
 
 296 RATIONAL AND POSITIVE LAW 
 
 ments are found in rational law. The certain of positive 
 law, a detached fragment of the idea of law, is a part of 
 reality, and is not identical with what is part of philos- 
 ophy, that is, with reality in general. We must not 
 forget that philosophy endeavors to explain not this or 
 that reality, but the reality of knowledge per se. 
 
 153. The Belief in a Rational Law. We have 
 pointed out before 1 that the Greek philosophers be- 
 fore Aristotle had advanced to a conception of a 
 law superior to the positive laws. Aristotle showed 
 the distinction between natural and positive justice. 
 In his mind, the just per se was a universal measure, 
 contradistinguished from positive -justice or that of 
 the State. The latter can be the mere determination 
 of the statutes or founded on nature; and hence the 
 difference between legal and natural justice. We have 
 shown that, in Cicero's mind, the "jus naturale" de- 
 pends on the "recta ratio," and the "jus civile" is con- 
 nected with the "ratio civilis." Cicero distinguishes 
 the "jus gentium" from the "jus naturae," consider- 
 ing the former as a form of positive law common to all 
 peoples and thinking that in it lies the principle of the 
 "recta ratio." All the interpreters of Cicero's thought, 
 however, do not agree on this. The Romans at first 
 recognized only their own law, the "jus civile." Later 
 they found, through their many relations with other 
 peoples, that there was something identical in all laws, 
 and conceived of a general positive law, a "jus gentium 
 quo gentes humanse utuntur." In progress of time and 
 with development of the mind, the jurisconsults based 
 the origin of the "jus gentium" in the "naturalis ratio," 
 and defined it "jus quod naturalis ratio inter omnes 
 homines constituit." Later still they generalized further 
 and came to the conclusion of the existence of a law more 
 
 1 Cf. $ 44 ante.
 
 ORIGINS OF DIFFERENT LAWS 297 
 
 ample and constant than the "jus gentium," that is, 
 a "jus naturale." Ulpian defines this "quod natura 
 omnia animalia docuit," and Cervidius Scsevola and 
 Paulus as "id quod semper aequum et bonum est." The 
 Stoic influence that controlled the idea of antecedents 
 and consequents of nature 1 is reached in this defini- 
 tion. 
 
 154. Origins of Different Kinds of Law. St. Thomas 
 distinguishes positive law, "lex humana," from the "lex 
 naturalis" and "lex seterna." The first is "quaedam ab 
 hominibus inventa" and should be part of the "lex 
 naturalis," which in its turn is part of the "lex seterna," 
 "ratio in Deo existens," "ratio seternse sapientse," 
 identical with the "voluntas Dei." Now such a dis- 
 tinction shows an advance on the philosophical theories 
 of the Middle Ages, in which natural law is based entirely 
 upon divine will as shown in the revealed word. Filo- 
 musi-Guelfi, in his "Concetto del Diritto Positive," shows 
 clearly that natural law began to lose its theological 
 character and to be more intimately connected law in 
 the days of the Renaissance and Reformation. The 
 attempts of Melancthon, Oldendorp, Hemmings, and 
 Winkler, show the new phase. Grotius denied that the 
 Scriptures are the source of natural law and admits the 
 possibility of the existence of law even in the case of the 
 non-existence of God. Natural law is derived from right 
 reason to insure a tranquil society ; civil law emanates 
 from the common will of men. So Hobbes recognized 
 natural law, "dictamen rectae rationis," which imposes 
 peace and is a guaranty, and positive law, the effect of 
 the sovereign will which harmonizes with natural law in 
 keeping the peace. Positive law for the rest is in 
 antithesis to natural law regarded as the original law of 
 the state of nature and fear. 
 
 l Cf. 107 ante.
 
 298 RATIONAL AND POSITIVE LAW 
 
 155. Rational and Positive Law Compared. Puf- 
 fendorf finds the fundamental rationale of law in 
 divine command and makes science take a backward 
 step here as well as in the discussion of the relation 
 between morals and law. St. Thomas and Wolff both 
 believe that natural law is based on human nature and 
 that positive law arises from will or agreement; that 
 the first is given by reason and the latter enacted 
 by the State. Filomusi-Guelfi shows the germ of 
 distinction in the doctrine of Rousseau, because the 
 principle of inalienable liberty is the law of nature, and 
 the will of the people is the principle of positive law. 
 There is no doubt at all in Kant's mind, because he 
 strictly separates rational law (the complexity of norms 
 which create external legislation) from positive law (the 
 collection of statutes which exist as such, and which de- 
 pend upon the will of the legislature governed by reason) . 
 Fichte sees the realization of natural law in positive 
 or historical law. Schelling starts out with the prin- 
 ciple of reason as the identity of the ideal and the real, 
 which he reaches by a simple intuition without a dialectic 
 process. He places the same difference between the 
 two terms that there is in his system between the ideal 
 and the real, both being originally the same. In his 
 mind, positive law is the necessary form of natural law. 
 Hegel shows that rational law is based on universal 
 principles.while positive law is determined by the national 
 characteristics, religion, and degree of civilization of the 
 people. Positive law is not contradictory of rational 
 law, which by degrees appears in it. Hegel is wrong 
 only in saying that the positive law stands in relation 
 to rational as the Pandects stand to the Institutes. 
 The simile is bad, because the Pandects and Institutes 
 are both treatises of positive law, the one full, and the 
 other restricted to the use of the schools.
 
 DISTINCTION BETWEEN LAWS 299 
 
 156. Distinction Between Rational and Positive Law 
 among the Positivists. The distinction between rational 
 and positive law is recognized in positivism in diverse 
 forms. Spencer, in "The Man Versus the State," admits 
 a natural law based on the uniform and constant con- 
 ditions of existence. He is bitterly criticized by other 
 positivist philosophers for departing from historical truth 
 and contradicting the laws of change and the relativity of 
 cognition, and considering man only as he is shown by 
 biology. There are writers who say that this conception 
 of Spencer is a relic of his early theory contained in his 
 "Social Statics," according to which morals and law are 
 based on the realization of the divine idea. God fore- 
 ordains the happiness of man, which is obtained by the 
 observation of the inflexible laws of existence. These 
 express a connection between cause and effect, between 
 conduct and result, and determine necessarily what is 
 good or evil, just or unjust. If the exercise of faculties 
 is indispensable to human happiness, the duty on one 
 hand and the right on the other to exercise them are 
 derived from it. These are the very words of Vanni, 
 who gives a resum of the Spencerian doctrine, and says 
 at the same time that such an absolute ethical system 
 cannot take account of actual imperfections, and there- 
 fore represents the law of ideal humanity; and that 
 eliminating the theological and teleological conceptions, 
 there remains in the later theories of the English philos- 
 opher the idea of an intrinsic reason in morals and law 
 due to the conditions of existence, and of a law not 
 created by the State but growing but of relations estab- 
 lished by nature. This idea is clearly developed in 
 Spencer's last book, "Justice," we may add. Spencer 
 says in its preface that he wishes to explain justice first, 
 abstracting every presupposition belonging to a super- 
 natural order. He distinguishes positive law, the work
 
 300 RATIONAL AND POSITIVE LAW 
 
 of the State, from natural or potential law, corresponding 
 to social ideality, absolutely true and just. This kind 
 of law, he says, has its base in the nature of man, who 
 wills freely according to the dictates of reason. Vanni 
 accepts the conception of a law founded on the indis- 
 pensable conditions of existence and the constitution of 
 things, and says that it is the true part of the old theory 
 of natural law. 
 
 157. Custom is the First Source of Positive Law. 
 The first and chief source of positive law is custom, 
 which presupposes the juristic sentiment of people and 
 certain external, constant, and general acts by which it 
 is shown. Ulpian says, "Mores sunt tacitus consensus 
 populi longa consuetudine inveteratus." A need arises 
 in society and demands a legal recognition. At the 
 beginning, its satisfaction is obtained through transi- 
 tory and isolated acts, and then a general conviction 
 of the necessity of this satisfaction grows. The acts 
 are repeated with uniformity and constancy by the 
 greater number of the members of the community. 
 This leads to the appearance of the "diuturni mores 
 consensus utentium comprobati," of the customary or 
 unwritten law, which has its expression in custom. 
 The factors of struggle and adaptation enter in such a 
 process, but its character of immediateness is beyond 
 controversy, because the process is entirely intuitive 
 and irreflexive and needs no special organ of the State. 
 Sometimes, this irreflexive and unconscious process has 
 its beginning in a conscious act of a single individual, 
 imitated by others. Who is ignorant of the influence 
 of the example of Lucius Lentulus, Augustus, and Labio 
 on the Roman law concerning codicils? Is it not 
 often true that a local dialect forced on or chosen by a 
 people becomes a national language? Does not a type 
 or individual characteristic, strongly emphasized and
 
 PRIMITIVE CUSTOM 301 
 
 in a position of attraction, become a model for all in an 
 age where the spirit of imitation is strong? With this 
 premise, the statement of the Glossators may be very far 
 from true that holds that the essence of custom lies in the 
 action itself as well as the theory; of Puchta, 1 that bases 
 it entirely on general conviction, and of Savigny, in his 
 "System des Heutigen Romischen Rechts." Custom 
 involves necessarily the two conceptions of the con- 
 viction and the constant and general use which have 
 the mutual relation of a basic principle and an 
 external expression. It can be easily understood that it 
 must contain as positive law the true. In other words 
 it must be "rationabilis" and must in progressive times 
 be recognized as law in order to have an obligatory force. 
 158. Primitive Custom Differs from General Custom. 
 But custom, so conceived, is particular and is already 
 a distinct legal form, and as such is posterior to the primi- 
 tive custom imposed by a single, indivisible, and abso- 
 lute power (of which Bagehot speaks), which tended to 
 form the tissues of legality, reducing, as Vico said, the 
 inhuman and wild Poliphemi to obedience. Before 
 legal customs and norms, before religious decrees, there 
 were customs and norms of another kind, appertaining 
 to the government of ceremonies, according to Spencer. 
 Maine points out in his "Ancient Law" that the Homeric 
 Themis is divine, inspiring the sentences of the gods and 
 kings; that the succession of these sentences, similar 
 in similar cases, created custom; and that in Homer the 
 word vd/j-os is not found, nor is there any conception 
 of a god, the author of a code. 'He cites some obser- 
 vations of Grote which seem new; that in the begin- 
 ning heroic royalty prevailed of divine right, then an 
 aristocracy, religious in the Orient, military and civil 
 in the Occident; and that the aristocracy exercised a 
 
 'Das Gewohnheitarecht.
 
 302 RATIONAL AND POSITIVE LAW 
 
 monopoly in the interpretation of law, and began thus 
 a customary law. Leist, in "Graeco-Italische Rechts- 
 geschichte," thinks that positive religious decrees pre- 
 ceded the formation of custom. Pantaleoni, in "Saggio 
 Intornoad una Quistione di Diritto Preistorico," severely 
 criticizes the theories of Maine in respect to Homer, 
 but he thinks that there is no doubt that the opinion 
 of the English writer can be applied to a more remote 
 and ante-Homeric period. Here it may be well to point 
 out that Maine, who was the first to write that the re- 
 petition of the judgments of the patriarch -kings created 
 custom, later gives us to understand that such judg- 
 ments are on the other hand the result of custom. He 
 says nothing, however, as to the origin of this custom 
 or the method of its formation, since he studied a phase 
 of relatively advanced evolution which contained the 
 patriarchal society and did not go back to the begin- 
 ning. Maine considered an already formed law; he 
 cleared away the confusion between this and other social 
 forces, especially religion, but he started out from the 
 time in which legal custom appears. Now, it is not 
 possible to go back to the first origins of law without 
 a generic custom which the greater part of the recent 
 writers consider as the result of imposition, after which, 
 when the legal tissue has been built up and strengthened, 
 other particular customs, distinct among themselves, 
 such as purely legal customs, spontaneously come into 
 existence. Certainly, the observation of the custom- 
 ary norm is not possible unless man has first acquired 
 the habit of obedience to some norm. Primitive man 
 was not in the least disposed to submission to a precept, 
 except under a rigorously coercive discipline. The 
 observations of Grote, repeated by Maine, are old and 
 are found in Vico's works, whose ideas on the divine 
 prerogatives of the primitive age are known. Vico
 
 CUSTOM LOSES IMPORTANCE 303 
 
 said that customs existed as examples before the laws, 
 which are universal ; that the laws of the Twelve Tables 
 are preceded by the customs of the Fathers. He says 
 further that the penalty inflicted on Horatius is an 
 example of the custom of the ancients; and that the 
 governments of the oligarchs were ruled by custom, 
 the custody and inalterability of the customs of the 
 ancients being the base of this regime. The law of this 
 epoch is a hidden mystery. Maine is right in point- 
 ing out that in primitive times the recognition of a social 
 authority was not necessary for the existence of custom. 
 Law is shown spontaneously in custom, and no one dis- 
 putes its validity of form or demands its recognition on 
 the part of the State in such an age. An extensive 
 development of mind and a profound analysis of fact is 
 needed before the conception of the necessity of the 
 recognition of this source of the law on the part of the 
 State is felt. Such a conception is the fruit of pure 
 reflection in the ages of reason. But if originally there 
 were no such recognition, and if custom had its worth 
 by its own force without having need of an authority 
 to decree it, later it was explicated, made certain, and 
 strengthened, losing the elements foreign to it by the 
 work of special bodies of magistrates, and of those 
 learned in the law, who formulated and applied it. In 
 Rome the College of Pontifices, learned in the law, and 
 the praetor interpreted the law. At the beginning the 
 poets who stood by the side of the Indian and Greek 
 kings, inspiring their decisions, were the depositories of 
 these customs. After the days -of the College, the 
 jurisconsults came with the mission of clearing, develop- 
 ing, and purifying the first and obscure source of law. 
 
 159. Custom Loses Importance, as the Statutes Mul- 
 tiply. In historical times, with natural reason fully de- 
 veloped, custom which represents mere juristic intuition
 
 304 RATIONAL AND POSITIVE LAW 
 
 cannot have its old extent and former efficacy. When 
 reflection about universal principles dominates, and the 
 organization of public power is developed, custom cannot 
 have the force of annulling the laws, as it had in Rome. 
 To-day the precept of the jurisconsult is no longer true; 
 "Quare rectissine etiam illud receptum est ut legas non 
 solum suffragio legislatoris sed etiam tactio consensu 
 omnium per desuetudinem abrogantur." Custom has 
 entirely lost its control in criminal law, because no penalty 
 can be inflicted without a statute, and has preserved only 
 the part of it that is essentially voluntary in civil law. 1 1 
 has a marked development in international law in which 
 codification has been lacking, and in commercial law 
 in which codification has had to assume a very general 
 character in order not to hinder the indefinite and con- 
 stantly changing combinations of the life of trade and 
 exchange, and to keep the different people together 
 through common and useful customs favoring the 
 cosmopolitanism of mercantile interests. 
 
 160. Learned Research is the Second Source of Law. 
 The second source of positive law is doctrine or juris- 
 prudence, which represents scientific reflection on the 
 statutes and general convictions shown by customs. 
 It is considered, however, as the immediate and supple- 
 mentary form of customary and legislative law. Its 
 action in respect to law is first practical and is shown 
 in the "usus fori" or "rerum perpetuo similiter judica- 
 tarum auctoritas" : and then becomes theoretical through 
 exegesis and systemization. Jurisprudence tends to inter- 
 pretate the living law, to supplement it with equity, and 
 to show the necessity or convenience of accepting new 
 principles. Interpretation means the understanding and 
 reproduction with proper knowledge of the thought of 
 the legislator. If all the laws should be understood, 
 we have to interpret not only the obscure laws, as
 
 DISTINCT FROM CUSTOM 305 
 
 Borrelli says, but even those that are clear. It is 
 customary in the schools to distinguish interpretation 
 by its elements of efficiency and origin. In regard to 
 its elements, interpretation is literal, logical, historical, 
 and systematic, depending upon whether it has to do 
 with the word the mens legis, with conditions of the time 
 and organic complexity of the legislative disposition ; as 
 to efficiency it is declaratory, extensive, and restrictive ; 
 as to origin it is judicial, scientific, and legislative, depend- 
 ing upon whether it is made by the judge, the interpre- 
 ters, or the legislator. Donnello calls these divisions 
 popular; Savigny calls them strange. They point out 
 that all interpretation is a free act of the intellect, of a 
 learned and declaratory character, and uses the four ele- 
 ments indicated, which are only means and not species 
 or forms. The modern codes decree that the judge can 
 never refuse to apply a law alleging its obscurity as a 
 pretext, but must attribute to it a meaning in accordance 
 with the literal meaning of the words and the intention 
 of the legislature, and when he cannot decide the case 
 with a precise legal disposition he can have recourse to 
 other dispositions of similar cases. When the case 
 remains at all doubtful it should be decided according 
 to the general principles of law. Such principles are 
 not those of abstract natural or rational law, but rather 
 those of the philosophy of positive law, a part, however, 
 of philosophy of law in general. Thus, the science of 
 law and its philosophy become sources of law, and form, 
 together with customs and statutes, -the juridical inherit- 
 ance of a people. 
 
 161. Jurisprudence is Distinct from Custom. Thus 
 much understood, it is clear that Bluhme, in "Encyclo- 
 paclie Jurische," is wrong in regarding jurisprudence only 
 as a reflexive form of customary law; and that Stahl 
 in "Philosophic des Rechts," Marezzoll in "Lehrbuch
 
 306 RATIONAL AND POSITIVE LAW 
 
 der Institutes des Romischen Rechts," and Bruns in 
 "Encyclopedic der Rechtswissenschaft," are wrong in 
 denying that it is a source of law. Even historically 
 this statement is not exact because there have been 
 instances in which some rules have had practical effi- 
 ciency through the work of science. Warnkonig in the 
 "Encyclopadie" and Savigny point out that analogical 
 interpretation is not a kind of extensive interpretation 
 because the former fills a gap and the latter extends 
 the sense of the law. Interpretation by analogy is 
 allowed through the conception that the judge cannot 
 refuse to apply the law, and not through strict princi- 
 ples of interpretation. In analogy, a conclusion is reached 
 by coordinating one thing to another, where if they 
 were coordinate the rule of the first case would not be 
 general but special, as in exceptions and as in the case 
 of the "jus singulare." Besides interpretation, jurispru- 
 dence supplements law by equity, which is not in the 
 least opposed to law. Equity, Aristotle taught, is better 
 justice, differing from legal justice and correcting it. It 
 is the law itself in opposition to its literal and narrow 
 form. Cicero says "jus civiliestsequitas." Celsus defines 
 the science of law as "ars boni et sequi;" so the sentence 
 of Paulus, that natural law consists in "id quod semper 
 bonum ac aequum est." It is the constant thought of 
 the Roman jurisconsults that the "legitimum" lay in 
 the word and in the letter of the law. "Verba et literse 
 legis" should be based on the "aequum." Beyond the 
 "aequum" there is the "rigor juris," the "jus durum 
 summum callidum," the "angustissima formula," and 
 the "summa crux." The "aequitas" is "jus benginum, 
 temporatum, naturalis justitia, ratio humanitatis." All 
 the history of Roman law shows this progressive move- 
 ment from the "legitimum" to the "bonum," in which 
 "fictiones" forms of analogy, capable of modifying the
 
 STATUTES THE THIRD SOURCE 307 
 
 substance of law, without altering its appearance, play 
 no small part. Finally, jurisprudence expresses its 
 desire of reform, the result of a long and attentive 
 critical practical examination of the legal institutions, 
 and encourages legislative changes and new codifications. 
 162. Statutes are the Third Source of Positive Law. 
 The third source of positive law, independent like 
 custom, and not supplementary like jurisprudence, more 
 certain and general than either and at the same time 
 reflexive, is the statutes. These are the expression of 
 the sovereign will of the State, or people formed in a 
 State, and are reducible to a "communis reipublicae 
 sponsio," to a "commune prseceptum" according to the 
 Roman definition. A statute is an independent source 
 because the direct and formal effect of the supreme social 
 authority, and is reflexive because it is the result of the 
 meditation of the legislators and jurisconsults. It is 
 more certain and general than custom and jurispru- 
 dence because it is a fixed and abstract formula in- 
 telligible to all and withdrawn from the interpretation 
 of the judges and the discussions of the scientific 
 schools. It is connected with jurisprudence, in its 
 learned preparation and development, and with custom, 
 which at the beginning furnishes the material, although 
 later it is formed more on a scientific basis. It is 
 not born of rocks and trees, as Plato points out, but 
 it presupposes a number of natural and historical 
 conditions which constitute its bases in fact. At this 
 point, it is useful to point out that the definition of 
 a statute as the expression of the sovereign will of the 
 State can lead to error, and that it is necessary to 
 avoid every possible error about the relations of a 
 statute. The English analytical school, represented by 
 Bentham and Austin, says that the notion of law, as 
 a statute, is inseparable from that of sovereign power
 
 308 RATIONAL AND POSITIVE LAW 
 
 and its coercive force; these ideas are found in the 
 above definition of a statute. Maine disagrees with 
 the analytical school and thinks that the definition is 
 exact if it refers to an advanced state of civilization and 
 therefore to a mature juridical system, but that it is 
 inexact if applied to the earlier stages. In primitive 
 times, law was not the product of a legislative organ 
 but lay in the complexity of venerated customs. Their 
 obligatoriness did not depend upon the coercive force 
 of sovereign power, but grew out of public opinion 
 and religious beliefs. We have said before 1 that Maine 
 did not see that the authority of power, coercion, and 
 obligation were preexistent in an indistinct form in 
 generic custom, from which various customs developed, 
 among which was the distinct juristic custom. Generic 
 custom embraced all the norms which were resolved 
 into authoritative traditions, respected for themselves. 
 Authority is given by custom, and the obligation of its 
 observation is connected with the fear of offending the 
 will of dead ancestors, whose spirits influence human 
 acts. This general fear is a coercive force, and is domi- 
 nant in conduct regulated by general opinion. The three 
 conceptions, included in the notion of the statutes, do not 
 develop all at once in an epoch of reflection, but have 
 their antecedents in the most remote times from which, 
 therefore, according to Vico, the study should begin 
 because the thing began then. 
 
 163. Statutes are not Mere Growths. As to the 
 relation between the statutes and environment, we 
 must remember that it can be exaggerated in the 
 sense that the formation of law and of statutes 
 is looked upon as the natural unconscious and slow 
 product of things that move of themselves without 
 force or struggle. Neither should an excessive action 
 
 1 Cf. 158 ante.
 
 STATUTES NOT MERE GROWTHS 309 
 
 be attributed to spontaneity. Vico taught that the 
 human world is developed through modifications of 
 mind. Consequently, it is necessary to attribute a 
 large part to the factor of reflection. Now, it is generally 
 admitted that the historical school is inclined to this 
 exaggeration, a fact manifest in the theory of Charles 
 Comte, the author of "Traite de Legislation," and in the 
 doctrines of many positivists, disposed to look upon legis- 
 lators as kinds of copyists or secretaries of their times 
 and registrars of customs, and upon legislation as natural 
 history. If this were true, science would have only 
 the duty of describing facts and not of giving advice, 
 since the statutes would be the real powers, the relations 
 of nature, of which Montesquieu speaks, which deter- 
 mine the methods of the existence and development of 
 a people; it would be useless to go to the legislator and 
 it would be vain to hope anything from him. Without 
 doubt these theories are partially true, in that environ- 
 ment influences man and in primitive times subjected 
 him, and in that nature determines man and gives him 
 his characteristics, and makes him similar, but does not 
 make him identical (as Gioberti says). It is clear that 
 the statutes should conform to the conditions of space 
 and time and the customs of the people. About this 
 there can be no question, but then comes the moment 
 in which man reacts and takes his revenge by dominating 
 them in his turn, modifying and transforming their 
 elements and forces, and beginning the course of civili- 
 zation. In such a moment, reflection or mind is preva- 
 lent and human liberty begins, and a second cycle in 
 creation from man to nature opens; the first is from 
 nature to man ; two cycles visible in the life of the 
 individual who epitomizes the life of the species. In 
 law, nature enters with all its influence on man but 
 man also enters with his reflection and free transforming
 
 310 RATIONAL AND POSITIVE LAW 
 
 activity. Statutes, as the work of man, succeed within 
 certain confines in producing modifications; environ- 
 ment and experience prove this. As the sources of 
 positive law increase and are higher, we see less of the 
 subjection of man to nature. And as legislative law is 
 explicated, the power of the statutes to modify the 
 environment increases, because science prevails and with 
 science, freedom. We have said that the doctrines 
 pointed out are not speculatively true because develop- 
 ment implies force, whose idea is not complete without 
 the notion of obstacles to conquer. Neither are they 
 historically true because law has run its course between 
 cruel contrasts and struggles. Such doctrines are also 
 dangerous because they lead men to inertia, teaching 
 that things fulfill themselves with little or no coopera- 
 tion on their part. 
 
 164. Laws should be Clear, Precise, and Indubitable. 
 Statutes, says Trendelenburg, should be stated in 
 serious and dignified language since they are ethical 
 will, that is, superior to the passions. They should be 
 brief and calm (since they are potent will), and as intelli- 
 gible to all as common speech. The expression of the 
 social will should be precise and incisive. Precision of 
 conception is limited by precision of definition. In the 
 sciences definitions show the boundaries of the concep- 
 tions. In law they are something more, and determine 
 the limits and legal relations, and represent a true 
 creative force. The ancient maxim, "Omnis definitio in 
 jure civili est periculosa parum enim est utnon subverti 
 possit," shows the difficulty which there is in compre- 
 hending the changeable relations of life in a clear and 
 precise conception, but one cannot deny the necessity 
 of exact definitions, custodians of the certainty of law, 
 kept within the borders of legal determination. The 
 definitions of law are sometimes, therefore, nominally
 
 CODES 311 
 
 declaratory, and sometimes are creative; there are not 
 lacking kinds in which all the essence of concept is not 
 contained, but only an element or some characteristic 
 sign of it. 
 
 165. Codes. As statutes multiply the need of com- 
 pilation is felt. They may be private or public, made 
 according to chronological order or according to subject- 
 matter. After the compilation, a higher need is felt, that 
 of the code which is the systemization or organization of 
 juridical institutions and laws. A compilation embraces 
 many laws which remain distinct; a codification contains 
 a single statute extending over the greater part of the 
 field of law. It is error to believe that codes are suggested 
 for political ends and not for scientific reasons, because 
 their necessity is confused with the profound demand 
 of systemization in the sphere of cognition, and is 
 shown in times of fully developed scientific reflection. 
 This does not prevent codification helping the educa- 
 tion of a people and consolidating their unity. The 
 modern idea of codification, which made its appearance in 
 the XVI Ilth Century, became then a general and powerful 
 desire of civil nations, because the mind felt the need of 
 synthesis, because of the great confusion in the law, 
 which entailed great inequalities. Not the least cause 
 of codifications has been the school of Grotius with its 
 idea of a natural universal law to which positive law 
 should be as far as possible assimilated. Leibnitz pointed 
 out the necessity of codification (shown in Germany 
 by the followers of Wolff). In Prussia, an eternal terri- 
 torial law based on reason was wanted. In Austria 
 there was a demand for an equal and stable law which 
 would have regard to the universal law of reason. In 
 those days it was generally believed that the Roman law 
 was the "ratio scripta" or "jus naturale" realized. The 
 French Code rested on the firm ground of natural law
 
 312 RATIONAL AND POSITIVE LAW 
 
 and on the virgin soil of the Republic. The Franco- 
 Prussian War revived patriotic sentiment and gave 
 Thibaut a desire for a common German Code. Savigny 
 was opposed to this because he, with his school, con- 
 sidered codification as the petrification of the law and 
 the cause of the prevalence of conceptions not based 
 on historical sources, and as an incentive for mediocre 
 commentaries. All agree in admitting that if a code 
 had been made in Germany at the beginning of the last 
 century, the law could not have obtained the broad 
 scientific development which it has to-day. Savigny 
 was right in speaking of the probable dangers of codifi- 
 cation for Germany at the time the motion was made. 
 But is he right in speaking of codes in general? Savigny 
 does not absolutely exclude codification, because in 
 some of his later writings after the publication of "Vom 
 Beruf Unser Zeit fur Gesetzgebung und Rechtswissen- 
 schaft," he says that there can be cases in which 
 codification is not to be condemned. But it cannot 
 be denied that outside of such rare cases he is the 
 enemy of codification, which has the merit of being 
 the highest synthesis of laws of the age of reason, 
 and cannot be called a crystalization of the law, because 
 its parts can be constantly amended according to results 
 of experience, or it can be entirely reenacted, as we have 
 seen done in our own day. To-day there is an effort 
 to base codes on life and the historical conditions of 
 society. These are not formulated in an endeavor to 
 find in reality the only principles of reason. The ancient 
 conception of the "jus naturale" is no longer dominant 
 after law has been conceived of as the human idea. 
 Modern science proceeds on the history of human ideas. It 
 consists in the systemization of 'ideas according to facts. 
 It prepares codes and makes them show the real state 
 of human relations, preventing the introduction therein
 
 LAW IN RELATION TO SPACE 313 
 
 of imaginary or purely subjective notions. Neither is 
 it tenable to hold that the scientific explication of 
 codified law, understood in its integrity, is a subject 
 of exclusively mediocre exegesis. 
 
 166. Law in Relation to Space. That ideal prin- 
 ciple, that is, the proportion or measure of things of 
 which law consists as realized in the life and con- 
 sciousness of peoples, demands coexistence and suc- 
 cession, space and time. But if space and time are 
 two conditions of the development of law, without 
 which law would be a pure and abstract logical idea, 
 they are certainly not its causes. Law is always a prin- 
 ciple superior to the conceptions of coexistence and 
 succession. To make law the same as space is to con- 
 fuse -the person with the place in which he resides, and 
 with nature, which is the matter and means of human 
 activity. To make law the same as time means to 
 exchange its essence for a transitory form and to make 
 injustice sometimes legitimate. Space, as Pepere writes 
 in "Encyklopadie der Rechtswissenschaft," has two 
 relations with law. From one point of view it appears 
 to us as a territory or extent in which law as positive 
 enactments has control. If positive law is the expression 
 of popular consciousness and of the will of the State, 
 the organ of the law, it can be inferred that it is terri- 
 torial, and extends as far as the supreme power of the 
 State itself throughout the whole domain ; but this idea 
 of the territoriality of the statutes is not applicable 
 when private relations are found that have been caused 
 by foreign laws, in which case the "lex originis" and not 
 the "lex loci" governs, as is seen particularly in cases of 
 private international law. From another aspect, space 
 can be considered as the material over which the energy 
 of the person can extend to attain his ends, and here we 
 see the connection between the natural sciences and law,
 
 314 RATIONAL AND POSITIVE LAW 
 
 which assumes different and various features or atti- 
 tudes according to the nature of the natural object to 
 which it refers. 
 
 167. Law in Relation to Time. Retroactivity . The 
 discussion of the relation between law and time brings 
 up the grave question of retroactivity. Does the law 
 govern only the future or does it also regard the past? 
 The most philosophical doctrine on this subject is that 
 of Lassalle in his work "System der Erworbenen Rechts," 
 clarified and amplified among the Italians by Gabba 
 in his "Teoria della Retroattivita delle Leggi." Lassalle 
 teaches that a new law cannot affect acquired rights 
 because they are derived from acts fulfilled under the 
 protection of the old laws. To admit retroactivity in 
 such a case would be to offend the principle of respect due 
 human individual liberty. Now this conception was 
 developed, long before Lassalle, by Trendelenburg, who 
 wrote that formal or recognized law is the basis of liberty, 
 and that acquired rights are under its protection. The 
 formal law of the statutes and the acquired rights of 
 individuals sustain and help one another. But a new 
 law, Lassalle goes on, is retroactive in regard to the 
 individual independent of his acts, if it looks to the 
 person himself or his qualities. This is true whether 
 the qualities depend immediately on natural law or on 
 positive and social law, or are contemplated by the new 
 law in a correct or incorrect manner. For example, 
 a law doing away with slavery and vassalage is applicable 
 to the past because it regards the personality of man 
 denied by such institutions. There can be no true ac- 
 quired right in a faculty given by positive law in open 
 contradiction to natural law. Gabba accepts the doc- 
 trine of Lassalle, but .enlarges and amends it until it has 
 a marked individualistic character. According to the 
 Italian, the acquired rights comprehend any permissible
 
 LAW IN RELATION TO TIME 315 
 
 act capable of financial valuation, exercised over an 
 object which is capable of becoming part of the estate. 
 Lassalle saw only the permissibility of the act and 
 omitted the other requirements. But it is not tru 
 that an acquired right arises exclusively from the act and 
 will of an individual person, because it can also arise 
 directly or indirectly from the law. In Gabba's mind, 
 every right is an acquired right, which is the resultant 
 of an act, legal when done, although the occasion giving 
 it value has not occurred before the passing of the new 
 law, provided that the right by the terms of law of the 
 time when it was done could have a financial value. 
 Acquired acts are of three kinds. The first are con- 
 sequences of the will of man, which intends to create 
 a given right by the acquisition of a "res nullius" or by 
 agreement with another. Acts of the second class 
 are also voluntary but do not contain the proposition 
 of originating a right, but if given by the law, the right 
 arrives "ope legis" as in the case of crimes, or even more 
 clearly in "obligationes ex delicto." The actsof the third 
 class are involuntary or fortuitous ; from them the right 
 arises "ope legis," as in alluvion. If we admit these rea- 
 sonable modifications of Gabba because they are based on 
 a more detailed examination of the subject, the doctrine 
 of Lassalle and its amendments can be epitomized as 
 follows: A law is not retroactive if it affects the volun- 
 tary or involuntary acts of an individual or facts done 
 which could give or create an acquired right according to 
 the law of the date in which they are done. The reason 
 of the non-retroactivity,.in this case, lies in the prin- 
 ciple of cause and effect; the acts and facts indicated 
 should be governed by the law of the time in which they 
 are begun or completed. Here the cause is not the 
 time, but the control of the law by which these facts 
 and acts are governed. If it is a question of person-
 
 316 RATIONAL AND POSITIVE LAW 
 
 ality, of a new and higher conception of man and his 
 substantial attributes, the new law is retroactive, because 
 an individual cannot hinder the ascending course of 
 the law by his will or objection. A new and more 
 rational declaration of the idea of man and his facul- 
 ties must be able to change the social state and attain 
 full realization. Two juristic conceptions of the per- 
 son and his fundamental powers in the same society and 
 time are absurd and contradictory. 
 
 168. False Rules of Retroactivity. The other doc- 
 trines concerning retroactivity have a scientific and 
 speculative value inferior to Lassalle's, as Gabba shows. 
 There are some that make retroactivity depend upon 
 the words of the legislature, and in doubtful cases the 
 presumption is in favor of retroactivity. This is no 
 rational criterion, but a canon of construction. We 
 are concerned with the principle which the legislature 
 should follow in extending the action of a new law to the 
 past or in limiting it to the future. The maxim of the 
 applicability of a new law, because it is better, to the con- 
 sequence of prior acts should at least be limited in respect 
 to acquired rights. Many believe that a law should be 
 retroactive if of a public order or prohibitive nature 
 without reflecting that it is not possible to establish 
 rigorously the boundaries of public order and of social 
 interest in contradistinction to private interest. This 
 criterion is not definite because the respect of acquired 
 rights is a matter of social interest and public order. 
 Neither is exact, because a new criminal law, which 
 is of a public nature, is not always retroactive. It is 
 clear that this conception of a law of public nature enters 
 in the more complex idea of retroactivity, which corres- 
 ponds to the demands of society, as the idea of private 
 order is connected with that of acquired rights and non- 
 retroactivity, which satisfies the demands of the indi-
 
 RETROACTIVE CRIMINAL LAW 317 
 
 vidual. Science, however, seeks a higher principle, a 
 supreme and ultimate reason that is definite and fixed. 
 The writers who say that prohibitive laws are retro- 
 active because the prohibitive character brings with 
 it necessarily retroactivity, and thence deduce a rule, 
 are not far from the conception of public order. Savigny 
 distinguished laws that have to do with the acquisitions 
 of rights or the allowance of a faculty to an individual 
 from laws which refer to the existence or non-existence 
 of rights and the recognition of an institute. New laws 
 of the first class cannot destroy acquired rights, as the 
 new law affects capacity of action ; those of the second 
 class are retroactive, for example, a law abolishing feuds. 
 It has been pointed out that this distinction rests on an 
 abstract and unstable category entering into both camps, 
 because the same law looked upon from the point of 
 view of the individual appears as a law of acquisition, 
 and from the point of view of the object is the law 
 governing existence of a right. The existence or non- 
 existence of a right, the legal recognition of an institu- 
 tion is very much similar to the public order and the 
 social interest of which we have just spoken. 
 
 169. Retroactive Criminal Law. Compensation. 
 Law has nothing to do with simple hopes or expecta- 
 tion when the title has not become irrevocable. Nor has 
 it to do with mere powers granted by the statutes, until 
 the fact on which they are based has happened. If this 
 fact has happened there is a true acquired right, and the 
 new law does not affect it. In criminal law it is not accu- 
 rate to speak of the acquired right of a criminal. What 
 belongs to the criminal can never be of financial value to 
 him. In general, it can only be allowed as a "suum" of 
 the criminal without acquiring the significance of a "jus 
 qusesilum." Nevertheless, the maxim that the most len- 
 ient laws are those which are applied whether they are an-
 
 318 RATIONAL AND POSITIVE LAW 
 
 terior or subsequent has an equitable value. Equity has 
 constant control in the field of transitory law, in which it 
 is well to examine the excuses of the contending parties, 
 those of the individual with his acquired right, and of 
 society with its reasons of general well-being and prog- 
 ress. The claim of society fundamentally is not the 
 need of the majority or of those who profit from the 
 change of law. It is equitable, Trendelenburg writes, 
 that all who demand the change and are benefited by it 
 should give some indemnity for the damage inflicted upon 
 the victims of the law. If it is a question of simple per- 
 sonal rights, for example, the suppression of a class privi- 
 lege or patronage, there is no room for damages, because 
 to give gold for honor is dishonorable ; but if it is a ques- 
 tion of property, a change of law should not take 
 away without labor and without a certain contribution 
 on its part from him who has gained something. In 
 other words there should not be an acquisition. The 
 English government is most praiseworthy in that, in abol- 
 ishing slavery in the Colonies, it gave an indemnity to 
 the slave-holders and obliged the freed negroes to work 
 for a certain time as servants of their old masters. 

 
 BOOK II 
 
 PRIVATE LAW 
 
 CHAPTER I 
 THE INDIVIDUAL AND HIS RIGHTS 
 
 THE PERSON. ESSENTIAL OR INHERENT RIGHTS AND ACCI- 
 DENTAL OR ACQUIRED RIGHTS. THE PRINCIPLE OF RIGHTS. 
 THE RIGHT TO PHYSICAL AND MORAL LIFE. THE RIGHT 
 TO FREEDOM. THE RIGHT TO EQUALITY, SOCIETY, AND 
 HEALTH. THE RIGHT TO WORK. 
 
 170. Juristic Man the Subject of Rights and Duties. 
 The personal unit is the subject of rights and duties 
 in the strict juristic sense. The personal unit is man in 
 his quality of an organism endowed with sense, cogni- 
 tion, and free will. If his sense is controlled by definite 
 and transfigured knowledge, if his will is practical 
 reason, it can be truly said: "Persona est, cujus aliqua 
 voluntas est." But man, the simple potentiality of in- 
 dividual will, or the autonomous determination of the 
 ego, is not the actual subject of rights and duties, for 
 though each individual is part of man in the universal, 
 yet he differs from him in the act of cognition, a precept 
 of law, because the individual juristic unit begins to have 
 his own life and functions. Yet abstract and concrete 
 man are of the same essence; the former has the power 
 to effect acts. And action is necessary; it is the second 
 element in man, the individual subject of rights and 
 duties. It is a kind of investiture, not a part of person- 
 ality, but a civil consecration.
 
 320 PRIVATE LAW 
 
 171. Society a Necessity. This investiture is 
 easily given recognition, when one sees that the in- 
 dividual becomes the true ethical subject and unit 
 in society, and that without society there can be 
 only the beginning and elements of an ethical being. 
 This being develops into man, acquiring freedom from 
 the dominion of the senses through knowledge and edu- 
 cation. The presence of language, education, and dis- 
 cipline presupposes a society. On this hypothesis is 
 based Aristotle's theory of the ultimate destiny of man, 
 of his autarchy and the relation between ethics and 
 politics; from this doctrine the modern philosophers 
 have not departed. Vico, in "De Uno Universi Juris 
 Principioet Fine Uno," defines character or "auctoritas" 
 as the principal resultant of the interpenetration of 
 power, freedom, and control. If power, he says, 
 connotes the wise distribution of property, and freedom 
 consists of its moderate use, and the control is the 
 strength of mind which governs power, one cannot doubt 
 that the "auctoritas" presupposes civilization, because 
 wisdom, moderation, and strength do not manifest them- 
 selves without language, culture, and education. Kant 
 holds that the State is contractual, but asserts that the 
 individual acquires in it freedom and independence. 
 Hegel believes that the community is the ethical sub- 
 stance or spirit and that the individual is but a simple 
 manifestation or form of that substance, although man is 
 an end for himself which develops and advances within 
 it. From his point of view, the community and the 
 individual are reciprocal cause and effect, because the 
 community is the force which holds the units together, 
 keeping them to their original character, while the 
 individuals by their separate acts try to change. Tren- 
 delenburg says that an individual without the ethical 
 whole or society is an impossible conception, and that
 
 TWO PREREQUISITES 321 
 
 the idea of man is always that of a community inclu- 
 sive of the individual. In psychology, as it is con- 
 ceived by Comte, statics concern biology, dynamics 
 the mind, and are the source of historical development, 
 but not of biological change. It is evident that the 
 individual in Comte's mind becomes an efficient unit 
 only because he is a factor in an entirety which develops 
 by historical steps. 
 
 172. Two Prerequisites: their Appearance in History. 
 The juristic person is fundamentally the same ego as 
 the human unit to the extent that he takes part in life 
 or in the sphere of external relations. But there are 
 two prerequisites essential to his existence, will and social 
 consciousness. Let us begin our consideration of the 
 philosophy of law from the time when these two req- 
 uisites first appear. As early as the period of the 
 family communities, and in the ages of the "gens" or 
 village communities, that is, before the birth of civili- 
 zation, we find these two elements more or less imper- 
 fectly portrayed. The juristic person, therefore, does 
 not necessarily exist only in civilization. In a state of 
 civilization his development is greater and more complex, 
 and he finds conditions better suited to his life and 
 advancement, but he had his place in the antecedent 
 stages. When we say that he cannot exist except in 
 civil community, we by no means say that he had no 
 existence in the earlier state of the social aggregation, 
 but merely assert that he cannot be efficient without a 
 society, though it be primitive, and that only in histori- 
 cal times has he developed his efficiency to the full. 
 The definition, "Persona est homo statu civili praeditus," 
 does not mean that man's advance depends upon a civil 
 state or civilization, but means that there is no man 
 without a relation to rights, which the law and State 
 recognize. This possession of rights is civil capacity.
 
 322 PRIVATE LAW 
 
 It is quite true that the principle of the juristic person is 
 manifest in different ways varying with the organic 
 structure of society, its sentiments, traditions, and 
 beliefs, and with the flora and fauna; but in all its 
 different manifestations, the two elements, will and the 
 civil investiture, which we mentioned, 1 are always 
 present. These elements are two formal conditions of 
 man whatever his particular or concrete character. 
 
 173. Absolute Rights and Relative Duties. The 
 individual has rights when considered absolutely, or 
 as an end, and duties when considered relatively or 
 as a factor in the whole or ethical organism, of which 
 Trendelenburg speaks. The individual is medial, not 
 because he is the equivalent of an object, but because he 
 is a force and conscious factor of humanity or the ethical 
 whole, to which he should be subordinate. This idea 
 apparently is in Rosmini's mind when he speaks of 
 generation as the origin of paternal rights and says that 
 the son is medial, in an ethical or personal sense, to the 
 pleasure and happiness which his parents can obtain 
 through him, and that he is ultimate or absolute con- 
 sidered from his own point of view. The son in his relative 
 quality has duties and in his ultimate quality has rights. 
 But the individual is an end for himself; and we must 
 consider him as such when he desires to be free in the 
 fulfillment of his duty or in the enjoyment of proper and 
 expedient, if not obligatory, actions. He is medial when 
 he must do or not do something, because under those con- 
 ditions he is the instrument for the realization of ethical 
 principles and the idea of humanity. We must observe 
 that the ethical organ does not live merely the life of the 
 whole, but has its own life and being and its own char- 
 acter differing in this from a simple natural organ. 
 In natural organisms of a high grade, the part has its 
 
 l Cf. 170 ante.
 
 INHERENT AND ACQUIRED RIGHTS 323 
 
 own life and a certain independence. But the life of 
 the part is quite inferior to that of man in respect to the 
 ethical whole. The individual is a unit, which the part 
 of the natural organism is not. 
 
 174. Inherent and Acquired Rights. The rights of 
 the individual are inherent or essential and acquired 
 or accidental. The essential or inherent rights are 
 not the powers derived from the "antecedents of 
 nature" of the Stoics or primary rights intended 
 merely for the conservation or propagation of the race, 
 although they are founded immediately upon the com- 
 mon and abstract nature of man, conceived in the 
 integrity of its essential parts. The acquired rights 
 have their origin in the concrete and individual nature 
 of man, not regarded exclusively in relation to the intel- 
 lectual and moral elements ; that is, not under the aspect 
 of the "consequents of nature" or secondary rights. 
 The essential rights express the true, the acquired show 
 the certain; the first are elementary forces, the second 
 represent development and realization. Rosmini writes 
 that there is one primal and essential right, that of the 
 person, and that then there are rights growing out of its 
 exercise in a mediate or immediate manner. The con- 
 nection between the activities and the personal essence 
 was either given to man by nature with his first exist- 
 ence or is formed by the exercise of his activities. If 
 united and proper to the personal essence (through the 
 nature of man) , they constitute the natural and inherent 
 rights; but if appropriate to the exercise of his activi- 
 ties and his natural rights, they are called acquired. 
 We cannot have an acquired right without a natural 
 right, and in general we cannot acquire a new right 
 without a precedent right. To acquire a certain activ- 
 ity it is necessary to act, and in order to act one must 
 have the necessary power, and therefore one must have
 
 324 PRIVATE LAW 
 
 the right to that power to rely upon in acquiring the 
 new activity or right. Thus the sphere of rights can be 
 extended as far as the activities can be developed. 
 In other words you can acquire the rights of which you 
 have the germs. 
 
 175. The More Development, the Greater Rights. 
 A man's rights multiply as his opportunities and 
 capacities develop. The more perfect the man, the 
 more progressive the community; the more civilized 
 the nation, the richer he is in rights. As time goes on, 
 the inherent rights assume through the realization of 
 acquired rights new forms and manifestations. These, 
 through evolution, grow and separate more and more, 
 and have more modifications and enter into a greater 
 number of correlations, so that the inherent rights no 
 longer appear as capacities given and immutable, but 
 as activities or powers of human nature which lie more 
 in the realm of action than existence, marked by the 
 most detailed and energetic unity and the most ex- 
 tended and indefinite variety. 
 
 176. Qualitative and Quantitative Distinction Between 
 the Capacities of the Spirit. These activities, being 
 capacities of the spirit, are not subject to mere 
 qualitative or quantitative distinction in the indi- 
 vidual. In qualitative difference there is not the 
 whole entity but something of the entity which 
 is divided and distributed in different ways, and 
 therefore each difference is a factoral part, and is 
 circumscribed. But since the spirit is not divisible, but 
 a unit (being wholly a complex capacity) , so the person 
 is a unit and complete in all his natural and inherent 
 rights. Hence the conception of the capacity and 
 inherent rights as subject to qualitative distinction is 
 opposed to the theory of the unity of the person and 
 spirit. Neither can these rights be measured quantita-
 
 THE PERSON AS THE SOURCE 325 
 
 lively, because between them there is not merely the 
 relation of more or less, and because they do not exist 
 in terms foreign to the person. The right to life, for 
 example, does not differ from the right to truth or 
 freedom by a sign of addition or multiplication, and 
 cannot exist without its subject. We know that quan- 
 tity is a foreign measure of determination because one 
 can augment or diminish without a qualitative differ- 
 ence. Whence it follows that the theory that capacities 
 and inherent rights are subject to quantitative distinc- 
 tions, even if it does not deny the unity of spirit and 
 man, does not look towards his development. In con- 
 clusion, inherent rights are capacities of the spirit; 
 different forms, therefore, of an ample and potent en- 
 ergy in constant progressive motion, interpenetrating and 
 resolving one in another, the lower in the higher. This 
 energy, which is seen in the richest development of its 
 methods, attitudes, and forces, is mind in psychology, 
 is the person in ethics. 
 
 177. The Person as the Source and Origin of Rights. 
 The source of the logical derivation of essential or 
 inherent rights can only be in the person, all of whose 
 rights are activities or powers. But we must under- 
 stand that we have not used the word person in an 
 integral sense, but meaning rather the abstract or 
 ethical man, of which he is a part. For it is not 
 logical to speak of absolute rights without considering 
 relative duties. Trendelenburg has correctly said that 
 inherent rights represent a series of postulates, guar- 
 anteeing to the individual conditions suited to his 
 development. Whoever invokes these inherent rights 
 should first recognize the ethical whole in which alone 
 they are possible and efficient. The idea of these rights 
 is inseparable from the end, which both the individual 
 and the community should strive to attain. This end
 
 326 PRIVATE LAW 
 
 is the full realization of the human essence. But the 
 person so conceived, more than the rights themselves, 
 should be considered as the principle and form of in- 
 herent rights. And when we speak incorrectly of the 
 rights of personality we do not mean special and dif- 
 ferent rights but the common centre of rights, the 
 human power itself. The criterion or general character 
 of a right, which distinguishes it from the activity 
 subject to it, is, according to Rosmini, property or 
 ownership in its broadest sense, indicating what is 
 connected with a man physico-morally, or acquired by 
 him; that is, brought within his ownership. In this 
 meaning, property makes a sphere around the individual, 
 whose centre is the individual, in which sphere no one 
 can intervene because no one can deprive another of 
 what is his. 
 
 178. The Development of Rights. And to show the 
 nature of the chief inherent rights, let us follow the 
 Italian philosophers, unsurpassed in this respect. Every 
 power is an activity, ungrown and in embryo, but hav- 
 ing a tendency to open and fulfill its nature in acts 
 suitable thereto. At first feeling tends to the repetition 
 of known sensations, then it makes for the attainment 
 of known results, and tends to happiness. Foresight 
 leads to the discovery of truth. Will makes for the 
 love of known pleasures, and tends to virtue. These 
 three tendencies to happiness, truth, and virtue, which 
 are one with the powers of sensibility, cognitions, and 
 will, are as well inherent rights as the powers from 
 which they grow. If the capacities are intermingled and 
 resolved one in another according to the laws of develop- 
 ment and evolution, and if fulfillment presupposes truth 
 and happiness, it is clear that the inherent right to ful- 
 fillment brings with it truth and happiness; and that 
 the right to truth comprehends that to happiness. With-
 
 INHERENT RIGHTS 327 
 
 out confusing the inherent rights with the "antecedents 
 of nature," but extending them also to the "consequents," 
 we can agree with Vico that rights, when referring to the 
 "consequents," give the regulations, which show the 
 certain, and that the necessity creates the "antecedents." 
 We must, however, always keep in mind that in dealing 
 with the "antecedents" we are dealing with the lower 
 side of human nature, and that the "consequents" show 
 the rational or voluntary part. 
 
 179. Subsidiary Inherent Rights. The individual 
 ought to realize his ideas, and accomplish his ends by 
 the attainment of happiness, truth, and virtue, and there- 
 fore he is the subject of other inherent rights, that is, of 
 rights to physical and moral life, to freedom, equality, 
 social existence, to assistance and work. Ahrens de- 
 serves the credit of having made a comprehensive 
 study of these rights. 
 
 180. The Right to Life. Without doubt the first 
 in importance among them is the right to life, which 
 begins with man, "in fieri," with the embryo or unborn 
 child. For either of these is a potential person, and 
 as such is inviolable and has rights. And yet the rights 
 of an unborn child are not fully recognized by some 
 codes; for example, the French and Italian, which 
 base the right of inheritance upon birth. Such a con- 
 dition is not just because the capacity of rights should 
 depend upon existence and not upon the possibility of 
 life. Man lives regardless of what his prospect of con- 
 tinued life is, and while man lives his rights should not 
 be lacking. Besides, this condition has given rise to much 
 doubt in the minds of the learned and, as Savigny points 
 out, is contrary to criminal law, which protects the life of 
 an unborn child. In practice, many inconveniences 
 occasioned by this erroneous principle are avoided by 
 the presumption that a child "en ventre sa mere" is alive.
 
 328 PRIVATE LAW 
 
 181. The Right to Life Does not Comprehend a Right 
 to Suicide. Suicide is a crime because self-preservation 
 is a duty of man. This duty is both moral and juristic. 
 There is no controversy on the question of the moral 
 duty because there can be no condition of life to which 
 the idea of happiness is not attached. Those philosophers 
 err who recognize a possibility of human existence irre- 
 concilable with ethics, because the deepest grief and 
 greatest disgrace cannot justify a man in the disregard 
 of his duties and exempt him from the attainment of 
 his proper ends. The knowledge of duty fulfilled is a 
 comfort in suffering and trouble and gives the despairing 
 man a feeling of tranquility and courage. There still is, 
 however, the juristic duty that a man, as far as his acts 
 are concerned and in his external relations, shall act in 
 concordance with the community and other men in 
 matters of general concern. Whence it follows, that 
 the community which, together with law, has the duty 
 of guaranteeing his actions, can punish whomsoever 
 wishes to destroy a man, even if that man be himself. 
 The right to life is as inalienable as human nature, 
 which cannot develop except through life, which is the 
 condition of the existence of all rights and duties. Neither 
 can we say that it is inalienable only as an essential 
 of social existence, because an inherent right is per se 
 essential as a part of personality. The inviolability and 
 inalienability of such a right are not consequences of 
 mutable social necessity or personal interest in the State, 
 but are concomitant with the incarnation of the human 
 principle in the individual. The teaching which we 
 combat is only the remnant of the Greek theory about 
 the relation of the individual to the State; that man 
 is but a fraction of an all-absorbing unit. This theory 
 rests on the power of the natural organism over its 
 parts and not on the rights of the ethical organism or
 
 RELATION OF SUICIDE AND LAW 329 
 
 whole limited by the character of its component parts. 
 It is true that man has no juristic relation with himself; 
 but in the above instance, the relation lies between the 
 individual and the ethical whole or community, in 
 which relation there develops a duty of the person to 
 realize the ideal of man in matters relating to acts which 
 affect either his fellows or physical objects subject 
 to their possession. Not only every man, but also his 
 children, wife, parents, brothers, and other men have 
 a right to his life, as we have said. 1 The community, 
 therefore, has also a right to preservation of his life. The 
 analogy given by Beccaria, between the right of self-de- 
 struction and emigration, is not well taken, because the 
 former destroys the man while the latter only transfers 
 him from one place to another. One's native land is not 
 a prison, and the State allows citizens to withdraw; but 
 the State cannot permit a man to perish. This duty is 
 not a derivative of national or political relations, but of 
 universal human existence. 
 
 182. The Philosophical Relation of Suicide and Law. 
 No inference that criminality is lacking can be drawn 
 from the failure to punish a suicide. He is not pun- 
 ished because social justice cannot take the culprit. It 
 is neither human nor civilized to insult his corpse or his 
 memory, nor is it just to inflict the penalty upon his 
 descendants and heirs by a confiscation of his estate. The 
 State can, however, punish the tentative suicide (because 
 the above reasoning does not apply), if it thinks it wise 
 to place a penalty on the attempt and not to treat it 
 with absolute contempt. For a statute is not sufficient 
 to stop the hand of him who no longer feels the natural 
 instinct of self-preservation, but will only make him 
 take all necessary precautions that his hand shall 
 not fail. But if civilized society is in a truly pro- 
 
 1 Cf. 179, 180 ante.
 
 330 PRIVATE LAW 
 
 gressive movement, and happiness in life is attainable 
 for the majority; if the State makes life easier by 
 the aid of well -developed, educational discipline, and 
 law is not considered as a tyrannical and foreign 
 master, legal prohibition, with such factors as these, 
 will accomplish the best results. With the moral ed- 
 ucation of the individual extended and invigorated, 
 the causes of this sad act will diminish ; and the knowl- 
 edge that the meditated act is criminal and dishonorable 
 will act as a sufficient restraint over many to whose 
 mind comes the thought of leaving this world on 
 account of some sorrow suffered or feared. While these 
 conditions are unattained and causes for suicide continue 
 to increase, there will be some men who have not sufficient 
 physical bravery to take their own life or undergo the 
 penalty in case of a failure, and others who will hesitate, 
 because of the disgrace attached to the act. But it 
 is clear that in both these cases the voice of instinct is 
 not spent, and the suicidal intent is badly formed and 
 therefore can be rendered nugatory by a statute. Fur- 
 thermore, it is a logical deduction from the above rule 
 that it is criminal to help the consummation of the 
 suicidal act. The maxim, "Volenti non fit injuria," 
 is only applicable to alienable private rights and does 
 not apply to those whose disregard, as Berner says in 
 "Lehrbuch der Deutsche Strafrechts," violates a duty. 
 The power to renounce one's rights is limited by the 
 rights of others. 
 
 183. The Right to Freedom from Bodily Harm; and 
 Self-Defense. The inherent right to physical life com- 
 prehends the right to safety and health, and to self- 
 defense. Mere life is not all: one must live in free 
 enjoyment of the qualities and the organs which nature 
 has so generously bestowed on man in order that he 
 may attain his ultimate end. This is admittedly true.
 
 THE RIGHT TO FREEDOM 331 
 
 No one has a right to self-mutilation. "Nemomemb- 
 rorum suorum dominus esse videtur" was prescribed 
 by the earliest law. . Whoever mutilates and destroys 
 or otherwise affects another's body or health, even 
 though the person injured has given his consent, is 
 guilty of an offense against the human personality and 
 law. The innkeeper who encourages drunkenness de- 
 serves punishment for injuring the health of his fellow- 
 beings. On the same ground, statutes have been 
 passed limiting the working hours of women and chil- 
 dren. The right to self-defense allows recourse to 
 force, when there is no opportunity to invoke the 
 arm of social justice for the protection of one's own 
 rights or those of another threatened with an unjust 
 attack. This is the private protection derived from 
 "auctoritas monastica," of which Vico speaks. It is, 
 therefore, descended from the solitary man or from 
 the State, in which he could not invoke the protection 
 of the law to repel an unjust attack. Vico thinks, on 
 this account, that man was originally a solitary being, 
 and that he can kill an unjust assailant in self-defense 
 because justice is on his side and against the aggressor. 
 Self-defense is inherent in every right, allowing the use 
 of power in the exercise of it. Rosmini goes further 
 and says that this use of force is a function of every right. 
 This doctrine recognizes that the human personality is an 
 inviolable centre of rights and that man can make full 
 use of force in their exercise. Since man is furnished 
 with intellectual and physical powers, he has the right 
 to use them in the maintenance of his rights. The harm, 
 which necessarily is inflicted upon the assailant, is justi- 
 fied by the general rule of justice, that a voluntary wrong- 
 doer must bear the penalty inflicted by the wronged 
 man, who becomes the instrument of justice. There are 
 two prerequisites to the exercise of the right of self-
 
 332 PRIVATE LAW 
 
 defense, the injustice of the attack and the presence of 
 danger. The injustice of the attack must be considered 
 by itself with due regard to the character of the assailant 
 who, for example, may be mad, but his lack of reason 
 does not take away the right of self-defense. The 
 danger must be real, but not inevitable in an absolute 
 sense, because the right of self-defense cannot be strictly 
 construed form the point of view of the man attacked, 
 who is without fault. Girardi correctly says in his 
 work, "La Difensa Legittima," that one need not scru- 
 tinize this right too closely. 
 
 184. Self-defense is Limited by Circumstances. 
 Self-defense cannot be limited by conditions which 
 are inconsistent with the dignity of the man attacked; 
 for example, flight; or which require a cool calculation 
 of the most suitable means of avoiding the attack arid 
 lessening its brunt at a moment when the instinct of self- 
 preservation is aroused and when the brain is confused. 
 The right of self-defense in its fullest extent, as a deriv- 
 ative of "auctoritas monastica," gives protection both to 
 life, safety, honor, freedom, and even personalty and 
 property, the projection of the personality. Grotius 
 and Rosmini agree to this fully on abstract grounds, 
 one in the name of full justice, and the other because 
 of his conception of private property. But public feel- 
 ing is against them, and does not lend countenance to 
 death-dealing in defense of rights or property of little 
 value. It is certain that the use of force is an attribute 
 of a right, and the possessor of goods can have recourse 
 thereto to prevent their injury or destruction, but equity 
 forbids him to inflict a great injury to avoid a little harm 
 which can be easily remedied. It must be understood, 
 however, that if to preserve property, one runs a risk of life 
 through the attack, then no matter how petty the thing, 
 one can always kill the assailant. The right of self-
 
 THE RIGHT TO HONOR 333 
 
 defense belongs not only to the man attacked but to 
 his relatives, friends, and in fact everyone can defend 
 the innocent party, since all men are bound together by 
 a natural bond that each one must help his neighbor. 
 With the right to life there is another right of necessity 
 or "jus sequivocum," which is only an agreement to 
 waive punishment, as Kant says. It is when a starving 
 man commits theft to save his life. 
 
 185. The Right to Honor and Good Name. The in- 
 herent right to moral life connotes honor and good 
 name. A person is presumed honorable, and there- 
 fore should be treated as just and honorable until the 
 contrary is proved. Reputation is not limited by life, 
 but comes into the world before the individual, and lasts 
 after his death. The heirs have the right to defend the 
 deceased's reputation and memory because of the in- 
 violability of his character, whose moral existence 
 extends beyond the tomb. Punishment cannot be in- 
 famous because man has always a personality in the 
 juristic and ethical sense, and can always wash away 
 the stains of dishonor acquired by the commission of 
 evil deeds. Disgrace, a consequence of a man's acts, 
 is the effect of public opinion, and cannot be inflicted by 
 statutes nor rationally be enacted in a law. The"exceptio 
 veritatis," or proof, cannot be reached by attributing acts 
 to a person, for they by their nature belong to the sphere 
 of autonomous will or to exclusive valuation of the 
 man. Neither can it be reached by referring an unjust 
 act to an individual, thus giving him a dishonorable 
 qualification, because it is not possible to give a defi- 
 nition relying upon one fact. The "exceptio veritatis" can 
 be accepted under facts prosecutable under social author- 
 ity ex officio; that is, in crimes affecting the rights of 
 all and producing social harm. It is important to society 
 to discover crimes and to pursue criminals because it
 
 334 PRIVATE LAW 
 
 must reinstate the violated justice and look to the 
 general safety. 
 
 186. Dueling. With the question of honor comes 
 the question of dueling, a method of justice unknown 
 to classical antiquity, when the State wrapped the indi- 
 vidual in on every side, but appearing in the barbaric 
 Middle Ages when the State was powerless and high- 
 handed individualism was strong, in whose eyes honor 
 and bravery were confused. Dueling is an absurd custom 
 because to accept a challenge and win a duel are acts 
 which can constitute the proof of bravery or skill at 
 arms, but which can be no proof of morality, justice, or 
 honor. An injury to these is only remedied through the 
 intrinsic justice of the public conscience. A duel, it 
 is said, in Chauveau and Helie's "Theorie du Code 
 P6nal," is a violation of the holy law written in every 
 heart, "Thou shall commit no murder." Not only does 
 morality forbid it, but society is alarmed by it and with 
 reason, because it is a substitution of individual in place 
 of social justice. To avenge an injury disturbs society. 
 The belief in the justice of revenge undermines the con- 
 science. It is an offense against the public peace. A 
 duel, therefore, is criminal for three reasons: because it is 
 an attempt against the life or body of a man, because 
 it is against public peace, because it represents an 
 irrational predominance of the "vis privata." The con- 
 sent of the duelists does not do away with the crime 
 because the maxim "Volenti non fit injuria," as we have 
 observed before, 1 does not apply to the inalienable 
 rights. It is not logically possible to let a duel go un- 
 punished and inflict the severest penalty upon a homicide 
 committed in anger and under provocation. Who- 
 ever, in a moment of anger, kills a man has his brain 
 beclouded and his mind confused. The duelist who 
 
 1 Cf. 182 ante.
 
 THE RIGHT TO FREEDOM 335 
 
 kills or wounds does so in a state of relative calm since 
 several days have passed since the insult. According 
 to some, dueling exists because of the not unfounded 
 conviction of the insufficient care of honor taken by the 
 statutes. But often duels grow from causes, as the 
 He given, an act of disrespect, or some petty rivalry, 
 which have not the slightest characteristic of a crime. 
 Any increase in the penalty for such offenses in order 
 to avoid duels would be most unjust because the penalty 
 should be commeasurable to the intrinsic value of the 
 criminal act. Neither by such a remedy would the 
 desired end be attained by the legislature, as Carrara 
 says in his "Programma," because the consideration 
 of the severity of the penalty, which the insult entails, 
 does not affect duelists. The insult itself is the cause. 
 They believe it a mark of bravery and virtue to demand 
 satisfaction with their own hands. Penal law should 
 punish dueling for the reasons given above and to pro- 
 test against erring public opinion. But it is impossible 
 for it to destroy the practice. The eradication of this 
 barbarous custom depends in the first place upon a 
 change of public conscience, which will correct its error, 
 and secondarily upon statutes which can only indirectly 
 take the glory from the physical bravery of the duelists 
 and the honor from this kind of fighting. Perhaps the 
 multiplication and reconstruction of courts with juris- 
 diction according to class and rank, permitting the con- 
 sideration of some questions of honor which arise from 
 acts which are not criminal, would tend to overthrow it. 
 187. The Right to Freedom. Granted a right to life, 
 immediately the right to freedom arises. What mass 
 is to our bodies, freedom is to the person, because 
 the person has his distinct ethical essence in free 
 will. Under its general aspect, the inherent right to 
 freedom is confused with the right of personality and
 
 336 PRIVATE LAW 
 
 is not a special or distinct right but the human right 
 above all others, as Spencer says. Conceived in 
 its special and distinct sense, it assumes various 
 forms, because there are freedoms of intellect, moral- 
 ity, religion, economics, civics, and politics. Intellec- 
 tual freedom has for its object truth and beauty. It 
 concerns science, art, and education. Moral freedom 
 is the autonomy of will, by which the motives of judg- 
 ment and conduct are freed from all coercion and enter 
 untrammelled into the realm of juristic valuation, 
 evincing themselves in actions which have relation to 
 others' rights. Freedom of conscience (including, as it 
 does, freedom of worship), making human existence and 
 action one, is not, as it is generally denned, the internal 
 and absolute power of the individual to think as he pleases 
 in matters of religion, because man, by nature a social 
 being, is relative, not absolute. True and full freedom 
 of conscience, or of election in matters of belief, is 
 developed in society by the agreement of the ma- 
 jority of the individual consciences in a given belief, 
 and a common and identical discipline and cult. 
 Industrial freedom is synonymous with competition in 
 the production of goods. It is the freedom to make 
 what one wants, how, where, when, and in whose com- 
 pany one wants. Civil freedom consists in the undis- 
 turbed exercise of private rights, while political freedom 
 is the participation of the citizens in the control of the 
 public affairs. 
 
 188. Equity and Socialistic Equality. Spedalieri 
 and Romagnosi teach that freedom in the individual 
 causes equality, and therefore the inherent corres- 
 ponding right. Men, whether units or citizens, are all 
 equal. Equality, growing out of abstract personality, 
 consists in the possession of the rights essential to 
 the individual; that is, inherent rights or theoretical
 
 THE RIGHT TO ASSOCIATE 337 
 
 and ultimate powers, as Romagnosi (who follows Vico) 
 calls them, confining them to ownership, freedom, 
 and safety. This abstract equality is purely formal; 
 that is, equality before the law. But the manifes- 
 tation of freedom in individuals is marked by a 
 natural variety in quality, quantity, and modality. 
 It appears in individual and primarily diverse forms 
 because individuality is as primal as the identity of 
 human nature; whence comes the concrete inequality 
 which governs the acquired rights and practical powers 
 of Romagnosi. Formal equality is above the con- 
 crete inequality and takes precedence of it. Thus a 
 man cannot take from another a part of his immense 
 property, for the same reason that the second, who 
 may have many possessions, cannot take part of the 
 small possessions of the first. An inherent right or 
 ultimate power, becoming by realization an acquired 
 right or practical power, clothes itself in an infinite 
 number of forms due to the various nature of the objects 
 over which it is exercised and the different physico- 
 moral constitutions of its subjects. The socialists dis- 
 regard the medial action of practical power, in which 
 lie all the processes of individuality, and consider only 
 the ultimate, indeterminate power of ownership equal 
 in all, and its agents in the external world common 
 in themselves. They do not perceive the actual and 
 positive bond between the individual and the object; 
 they deny the right of private property and believe 
 in the collective ownership of instruments of labor. 
 As is easily seen, absolute equality and collectivism can 
 only exist in abstract Utopias. 
 
 189. The Right to Associate. Man is free and essen- 
 tially social, whence the inherent right to associate. 
 Even among animals there is a kind of social intercourse, 
 wonderful in its forms in certain species, but directly
 
 338 PRIVATE LAW 
 
 and immediately connected with their physical needs, 
 remaining always instinctive, and never passing beyond 
 the limits of simple aggregation. Human society, on 
 the other hand, develops through reflexion and free 
 will, and is most complex. It appears with most 
 particularity in the companies and partnerships, which 
 demand the cooperation of many wills for one object, 
 a knowledge and a will to cooperate, and a union of 
 many wills for the common object. The companies 
 and partnerships so distinct from aggregations owe 
 their origin entirely to the right of association, and 
 while they are in part necessary they are in part free 
 and eventual. The right to society takes in all the 
 ends of life applying to art, literature, science, eco- 
 nomics, morality, religion, and politics. It assumes 
 always new and complex forms and grows more and 
 more free from the element of instinct. We can see 
 that if the association or partnership does not look to 
 one or more common interest or advantage or the 
 utility of its members, according to what is right and 
 just, but tends to the destruction of the principles of 
 the civil constitution or organism of public power, whose 
 existence is required by the rights of all, it should not 
 be recognized or tolerated. 
 
 190. The Right to Aid. Individual man is not self- 
 sufficient, but tends to autarchy and full self-realization 
 in all possible ways. He has an inherent right, as 
 part of the ethical whole, to assistance, and this right 
 is complementary and subsidiary to his nature, pre- 
 supposing self-help and deficient personal power. This 
 right can be upheld as a necessary condition of life 
 independent of the will or as the result of a primordial 
 state of freedom; in the first case he has the right to 
 social assistance because society is an indispensable and 
 natural state, in the second, through contract and 
 quasi-contract.
 
 THE STATE AND ITS EVOLUTION 339 
 
 191. The State and its Evolution. When the State 
 and the people were antagonistic, and the State was 
 considered as a means for individual ends, the political 
 ideal lay in the constant diminution of action by the 
 political power. And it was held that the activity of 
 the individual in the course of civilization would 
 almost entirely take its place except in the main- 
 tenance of public safety and protection. But if the 
 State is an organism, it cannot escape from evolution, 
 which causes a constantly increasing complexity of 
 relations, functions, and powers, as has been shown be- 
 fore. The State, in the progress of time, has, on one 
 side, lost many functions which implied a denial of the 
 principle of personality and individual initiative, but, 
 on the other hand, it has acquired a large number of new 
 powers intended to help, aid, and protect in a thousand 
 ways the growing affairs of the individual. The more 
 the modern State develops, the more it tries in every 
 way to help individual activity, once aroused; but its 
 aid is not given in inverse but in direct ratio to 
 individual effort. Spencer and Wagner are both wrong 
 in their defense of two opposite theories. One thinks 
 that the action of the State diminishes in ages of civili- 
 zation, while the other thinks that it increases to the 
 great danger of individual energy and initiative. Ex- 
 perience shows that neither of these theories is true, 
 because the number of the functions of the State in- 
 creases and the public expenses are enormously aug- 
 mented, while at the same time there is a great increase 
 in social wealth. The first two facts discredit Spencer's 
 opinion; the third is opposed to Wagner's. We may 
 further observe that Spencer contradicts himself because 
 he recognizes the State as an organism, and, although the 
 great master of the doctrine of evolution, applies it only 
 to the individual and not to the State. For certainly
 
 340 PRIVATE LAW 
 
 he is not making the State subject to evolution when he 
 says that the individual, with progress, becomes more 
 active, as it were, gains new powers; and the State loses 
 those that it had and could still have in relation to society, 
 and retains merely its juridical and negative duties. 
 
 192. The Right to Work, Distinguished from the 
 Right to Work of the Socialists. The individual, free, 
 social, and assisted by the community, accomplishes 
 his objects and has a last inherent right, that is, to 
 work, consisting of freedom to exercise his forces 
 and attributes in the production of goods and 
 wealth. The State for its part, to quote Romagnosi, 
 is confined to giving the people social worth, that is 
 to say, to making men skilled in different kinds of pro- 
 duction, and to awakening their productive powers by 
 instructions and education. This right to work, how- 
 ever, must not be confused with that other right to 
 work announced by the socialists, in which the individual 
 can normally go to the State and obtain from it the ob- 
 jects and the means for the exercise of his business. 
 This right cannot be recognized, because the State 
 exists with the object of protection, education, and 
 happiness, and not to constitute or keep alive any 
 especial kind of business. The modern State partic- 
 ularly feels a certain repugnance to assuming functions 
 which have a comparatively economic character. It has 
 sold its lands and no longer exercises any industries 
 along the line of private effort, and gets its greatest 
 revenue from the customs. And if it enters into 
 economic affairs, it is only because private effort is not 
 made, or not made with sufficient vigor, or else to destroy 
 the harmful effects of a monopoly or give financial en- 
 couragement. The State does not take the place of the 
 individual in business, but protects him and helps him 
 make his efforts availing. The right to assistance is
 
 THE RIGHT TO WORK 341 
 
 complementary and subsidiary and presumes the prin- 
 ciple of self-help and personal initiative, as we have said 
 above. 1 Thornton, in his book on "Labor," asks why 
 the rich have any duty to save from starvation in any 
 way at all those who come into the world without act 
 of theirs. Has the world been given to humanity on 
 condition that it feed all its inhabitants? Or has part of 
 humanity been deprived of the means necessary to life? 
 If the first is true, the condition imposed is not just, 
 because the population would rapidly surpass the means 
 of subsistence; one must remember the Malthusian 
 theory that population tends to increase with greater 
 rapidity under the best industrial conditions than the 
 means of subsistence. But to put aside at once any dis- 
 cussion about the geometric progression of population 
 and the arithmetical progression of the means of subsis- 
 tence, there is no doubt that propagation is too easy for 
 existence to be without a struggle. If we answer the 
 second question in the affirmative, one should return to 
 the disinherited all that would have been their share 
 if the land had not been allotted. In this case, they 
 would need the fragments from the tables of the rich to 
 pay the equivalent, because land is of little value with- 
 out work. If we recognize, therefore, this right to work, 
 capital would diminish to a marked degree, because the 
 State, become purveyor of labor, would take through 
 duties and customs the savings of the citizens to a great 
 extent. Besides, the State would always need to have 
 ready the material for work in all the industries of mind 
 and hand. The sloth of laborers, sure of their wage, 
 would be the practical consequence of the establishment 
 of this so-called right. 
 
 193. The Correlation of Rights and Duties. So far 
 we have defined the individual in the juristical sense 
 
 l Cf. 190 ante.
 
 342 PRIVATE LAW 
 
 as the subject of rights and duties, and we have 
 seen that the individual is man and that man is the 
 personal unit. The two conceptions are interchangeable 
 because equipotent in the philosophy of law and, for 
 that matter, in positive law. Full civil capacity em- 
 braces the enjoyment or possession of rights and their 
 exercise, that is, the capacity of the right and its use. 
 The enjoyment can be without the exercise, but the 
 exercise presupposes the enjoyment. We understand 
 that civil capacity is full or limited, depending upon 
 whether the intelligence and will of the person is per- 
 fectly or imperfectly developed. This limitation has 
 to do with the exercise and not with the possession, 
 because there is no person without rights, although 
 he may not know of their existence; as, for example, a 
 baby or an embryo. But it is certain that he has not 
 duties if he is ignorant of them. This is not true of 
 rights, because a man merits respect because he is man, 
 without his knowledge of the respect that is due him. 
 It is sufficient if the duty of respect be known to them 
 who should exercise it. The individual begins by having 
 rights and not duties through his lack of knowledge of 
 the latter. And thus there is not a correlation of rights 
 and duties in the same individual though there is between 
 different individuals. The civil capacity, of which we 
 speak here, differs from political capacity inasmuch as 
 it is more complex and makes for ends more ethical and 
 general, and therefore needs for its exercises new condi- 
 tions and attitudes, besides those requisite in the exer- 
 cise of private rights. The limitations of civil capacity 
 are determined by the interest of the persons who are 
 subject thereto; the limitations of political capacity 
 from the conception of the welfare of the State.
 
 MAN IN A STATE OF NATURE 343 
 
 CHAPTER II 
 
 THE HISTORICAL CONCEPTION OF 
 INHERENT RIGHTS 
 
 THE RIGHTS OF MAN IN THE STATE OF NATURE. THE STATE 
 OF NATURE ACCORDING TO THE PHILOSOPHERS OF THE XVIII 
 CENTURY CONSIDERED IN CONNECTION WITH THE NATURAL 
 STATE OF THE ROMAN JURISCONSULTS AND THE GREEK PHIL- 
 OSOPHERS. THE THEORY OF KNOWLEDGE, AND THE METHODS 
 OF CONCEIVING THE ESSENTIAL RIGHTS OF THE PERSON. 
 THE INHERENT RIGHTS OF MODERN PHILOSOPHY. THE 
 REGIMES OF STATUS AND CONTRACT. 
 
 194. With Abstract Thought Comes Self-realization. 
 The individual, at first absorbed in the ancient State, 
 then bound down by imperial and ecclesiastical power 
 and later by absolute monarchy, begins to take action, 
 and acquires with the passage of time full knowledge 
 of his power. With the development of abstract thought 
 he sees his own possibilities. He tries to escape from the 
 historical bonds which are opposed to his individuality. 
 He imagines a primitive and extra-social state of exist- 
 ence, and calls it the beginning and end of the moral 
 world, and so he acquires all those abstract ideas which 
 caused the French Revolution. 
 
 195. Man's Powers in a State of Nature, It is 
 clear that to cause such a movement, inherent rights 
 must be conceived as the powers of man in a state 
 of nature. Hobbes admits an original right of everybody 
 to everything in such a state, which was a cause of general 
 warfare. Locke recognizes in it a law comprehensive
 
 344 INHERENT RIGHTS 
 
 of the right to life, freedom, and property, and a certain 
 power of punishment over the individual. Rousseau 
 regards it as a primitive condition typical of the life of 
 humanity, but one not found at the present day, which 
 allowed full and positive exercise of freedom, equality, 
 and independence. According to this doctrine, the 
 mind in the primitive epoch could grasp the idea of the 
 essential and universal rights of the individual ; that is, 
 the object of the social contract. The constitutional 
 agreement of a civil community or State towards man's 
 inherent rights could then be formulated. As we have 
 said before, Rousseau, believing in the principle of inalien- 
 able freedom, resolved the problem by finding a kind of 
 political union in which freedom was not lost, but each 
 citizen in obeying the State obeyed himself, with a full 
 and reciprocal renunciation of all individual rights to 
 the community. 1 
 
 196. The Doctrine of the Natural Goodness of Man. 
 The philosophy of the XVIIIth Century believed in the 
 natural goodness of man, his original unlimited freedom, 
 and a primal law of nature. It taught that social acts 
 are governed by laws of nature, which lead men to happi- 
 ness, if the vices of existing institutions did not inter- 
 fere. Rousseau says that everything is good as it conies 
 from the hands of nature; Turgot holds that man is 
 good by nature; and Quesnay founds the physiocratic 
 doctrine on that of the reign of nature, and believes in 
 the restoration of the empire of natural law through 
 the abolition of all artificial and arbitrary ordinances 
 that impede its development. Adam Smith adheres to 
 these principles in "The Wealth of Nations," and says 
 that the obstacles will disappear with the establishment 
 of a simple system of natural freedom. His followers 
 never grow tired of repeating with the physiocrats 
 
 l Cf. 101 ante.
 
 BELIEF IN A GOLDEN AGE 345 
 
 the doctrine of leaving all to nature of conforming 
 to God's will. Economic optimism reached finally its 
 most splendid expression in the necessary and inevitable 
 harmonies of Bastiat. 
 
 197. The State of Nature is Found in theEarliest Writ- 
 ings. The doctrine of original perfection and the state of 
 nature is connected with the oldest traditions of a Golden 
 Age, anterior to society, and has in Italy its historical 
 antecedent in the treatise of Girolamo Vida on "Dignita 
 della Republica," published in 1556, and in the work of 
 Giovanni Bonifazio, "La Republica delle Api," edited in 
 1627. Vida begins the "apologia" of the state of nature 
 and criticizes society, saying that Theseus, who changed 
 Attica from a pastoral state to one of civilization, was 
 the author of a public calamity. Bonifazio describes the 
 customs of the inhabitants of an imaginary island of the 
 Pacific, who follow their own will in a state of nature, 
 without statutes or codes, without popes, priests or 
 monks, the men worshiping the sun and the women 
 the moon. 
 
 198. The Jurisconsults' Belief in a Golden Age. 
 Roman jurisconsults of the classical age, under the 
 influence of Stoic philosophy, speak also, though very 
 vaguely, of a primeval state of nature and of a remote 
 antiquity in which natural law had the force of statutes. 
 It is written in the Institutes: "Palam est autem vetustius 
 esse naturale jus, quod cum ipso genere humano rerum 
 prodidit: civilia enim jura turn esse coeperunt, cum et 
 civitates condi et magistratus creari et leges scribi 
 cceperunt." But we must observe that with the Greeks 
 the word nature signified primarily the physical world as 
 a manifestation of a single principle, and only later was 
 used to indicate the moral world, governed by general 
 and simple laws; therefore, to live according to nature 
 meant to live normally with one's kind. The juris-
 
 346 INHERENT RIGHTS 
 
 consults, imbued with the Greek idea of a state of nature 
 and believing it to be a primitive order of life, taught 
 that freedom and equality are natural rights; to cite 
 the Institutes: "Jure enim naturali omnes homines ab 
 initio liberi nascebantur. Quod ad jus naturale attinet, 
 omnes homines sequales sunt." 
 
 199. The Difference between the Belief of the Juris- 
 consults and the Physiocrats. Yet we must admit the 
 Roman jurisconsults, in recognizing the reign or state 
 of nature, differed not a little from the greater number 
 of the authorities of our own times, because they did 
 not emphasize, as the latter, conditions which were 
 extra-social or of savage isolation, but meant by the 
 reign of nature a primitive State ruled by simple and 
 harmonious laws. There is a profound and general 
 belief among the jurisconsults in a "societas gentium" 
 or "generis humani" as the product of nature. The 
 quotation cited above, 1 besides others, proves it, and 
 Gaius says, "Juris enim gentium est societas, quam 
 inire omnes homines naturali ratione possunt." Satur- 
 ninus also, "Natura hominum est communis"; and 
 Florentinus adds, "Inter nos cognationem quamdam 
 natura constituit." Cicero welcomes the Stoic idea, 
 "Hominum causa homines esse generates," and accepts 
 the other belief, which he expresses in many ways; 
 "Mundum autem esse quasi communem urbem et 
 civitatem hominum etdeorum." Seneca writes, "Natura 
 amorem indidit mutuum et sociabiles fecit." Over the 
 minds of the j urisconsults, the Epicurean theory (though 
 reproduced by Lucretius, Horace, Vitruvius, and in places 
 by Vergil and even Cicero) did not exercise a great 
 influence. This theory teaches that men in the beginning 
 live "more ferarum" as a "mutum et turbe pecus," 
 struggling among themselves, "pugnantes unguibus et 
 
 1 Cf. 198 ante.
 
 THE EARLY GREEKS 347 
 
 pugnis propler glandem et cubilia," ignorant, without 
 marital or paternal relations, with no moral sense. 
 In such a primitive period fear, utility, and blind chance 
 were the beginning of society, according to the followers 
 of Epicurus. Furthermore, the ancient philosophers and 
 jurisconsults do not deny the present control of natural 
 law but think that positive law must gradually become 
 like it, while our philosophers do not see its existence in 
 actual reality and wish radical and immediate transfor- 
 mations in society to realize their fantastic types. 
 
 200. The Early Greeks Believed in the Connection of 
 Natural and Positive Law. The conception of a primi- 
 tive order of nature among the Greeks is older than 
 Stoic philosophy and belongs to the Sophists, accord- 
 ing to the statements of Chiappelli. The idea of 
 nature was the beginning of speculative thought be- 
 fore the time of the Sophists, and is the base of 
 ethics in the first phase. Prodicus of Chios and Hip- 
 pias of Elis placed nature above positive law and 
 therefore in opposition to it. According to these two 
 Sophists, the honest and just have roots in nature 
 from which the positive law has far departed. We 
 must return to a state of nature if we wish the rule of 
 justice. Other Sophists, to quote Chiappelli, believed 
 the contrary and placed positive law above nature, re- 
 garding it as the purification of the undeveloped and 
 savage state of nature, or as an artificial convention 
 and superimposed fiction. This is the position of Protag- 
 oras, the idea of King N6/>s, and the destructive theory 
 of the later Sophists. According to Hippias, the un- 
 written laws of nature enter into all legislation because 
 they are a divine work, while positive laws are various 
 and contradictory, being the offspring of accidental 
 agreements of men. Statutes often do violence to nature 
 and create inequalities between fellow-beings. The typi-
 
 348 INHERENT RIGHTS 
 
 cal human life can only be found in primitive conditions 
 and not in civil life. We must not marvel at such 
 beliefs if we consider slavery as an institution contrary 
 to nature introduced by positive law. A Sophist, a 
 disciple of Gorgias, Alcidama by name, taught that 
 the gods gave freedom to all, and that nature never 
 introduced slavery. Aristotle referred to the fact that 
 many believed slavery wrong and combated that opinion. 
 Later a tendency contrary to the movement instituted 
 by Hippias grew up among the Sophists tending to 
 destroy the moral reason of nature and to sustain in its 
 place civil custom and convention. Gorgias showed 
 that the state of nature must either be variable or con- 
 stant; if variable it cannot be the ethical norm, if con- 
 stant it can only be the beginning of civilization. And 
 he adds that we cannot be sure that it ever existed and 
 further that, if we can have definite knowledge of it, 
 its reinstatement in the changed conditions of society 
 is impossible. Protagoras compares the natural state 
 to that in which man has neither education, statutes, 
 courts nor the force which urges him to excellence; 
 saying that men in such a state are savages resembling 
 the famous Chorus of Misanthropes of the poet Phere- 
 crates. In his mind excellence is attainable in civil 
 life by education. The State decrees the norms of moral 
 life by its statutes; therefore the honest and just are 
 determined through them by public opinion. Justice 
 is a reality, not because a gift of nature, but because 
 the result of a higher power, that is, of a political agree- 
 ment. Such is, in a few words, the signification of 
 King N6/>s. From these opposite principles of Hippias 
 and Protagoras, the Sophists, Callicles, and Thrasi 
 machus come to the apotheosis of individual sovereignty, 
 despotism, and anarchy. Callicles argues as follows: 
 that if a state is not a convention contrary to the laws
 
 THE GOLDEN AGE 349 
 
 of nature, and if in nature might is right, he infers that 
 the just is what he who has the might wishes and makes 
 it. In society the majority rules the stronger individuals, 
 who await an opportunity to rebel and free themselves 
 from this state of impotence by overthrowing the con- 
 stituted order from its base. Thrasimachus departs 
 from the conceptions of Protagoras, and shows that if 
 there is justice in the statutes of the State, inasmuch 
 as these are rules imposed by the stronger, justice is 
 only utility; that is, the interest of the stronger. Thus 
 the two schools of the Sophists, one teaching the suprem- 
 acy of nature over law and the other teaching the 
 supremacy of law over nature, lead to the same result; 
 that is, despotism and social dissolution. 
 
 201. The Golden Age an Impossibility, as Shown 
 by the Historical Trend of Government. Admitting a 
 primitive order of nature ruled by this "jus naturale," 
 and from this the growth of freedom and equality of 
 all, we must conclude that the mind of a man in the 
 initial ages could not conceive of the notion of "jura 
 innata," or essential and universal powers. It would 
 discredit the evolution of the human mind, which from 
 the consideration of phenomena goes on to that of the 
 essence, from the particular to the universal, and from 
 the prompting of the senses or instinct to the attainment 
 of freedom. And we fall into the error of generalizing 
 from the present and transferring it with aid of fancy 
 into the distant past. Natural man is also social man, 
 but the social conscience is undeveloped in him. He 
 is not rational and good as the philosophers of the last 
 century imagined him, but selfish, without a sense of 
 evil, and impatient of restraint. In the first grade of 
 society everything belongs to the strength. Violence 
 is the measure of right. Whoever is better armed and 
 possesses an organically stronger constitution conquers
 
 350 INHERENT RIGHTS 
 
 and kills him who is less prepared for the struggle of ex- 
 istence, as is shown by the life of plants and animals. 
 Civilization is the emancipation of man from the yoke of 
 foreign influences, and freedom from the wild state, pic- 
 tured by Epicurus and Hobbes, who believed, however, in 
 a condition of solitude to which society has succeeded 
 as an artificial creation. Society progresses and extends 
 as man grows further away from the primitive world. 
 The idea of a "jus naturale," common to our entire 
 species and fitted to the principles of a "naturalis ratio," 
 in which the essence of man is found, could not have a 
 place in our mind, if we first had not thought out and com- 
 pared the many similarities and likenesses among the di- 
 verse laws of different peoples. Neither can there be any 
 doubt that the conception of the constitution of society 
 and the State, through contract, exceeds the force of the 
 rude primitive intellect and is modern, because the pre- 
 dominance of contracts in all relations of ethical life 
 show the most extended and exaggerated affirmation of 
 the principle of individual freedom. Now the law of 
 primitive times was not founded on the individual but 
 on the tribal or family community, and made rather a 
 "jus cogens" than "voluntarium," disciplining men to 
 the control of power or will. 
 
 202. The Development of Reason. It is a fact that 
 the mind at first tries to explain the relation of phe- 
 nomena superficially and arbitrarily, trusting to the 
 fallacious testimony of the senses, not going beyond 
 the sphere of purely assertive and simple judgments. 
 Judgments, in this stage of intellectual development, 
 are assertive (inasmuch as they are founded entirely 
 upon our intuition) and simple (because they grow 
 from sensation). As the mind progresses, judgment 
 becomes problematic, because the mind is not satis- 
 fied with primitive conceptions external, rough and
 
 DEVELOPMENT OF REASON 351 
 
 not conforming to fact; and consequently it begins to 
 be bothered by that fecund doubt which is the father of 
 science. A thing can be thus and so from problematical 
 judgment, so we search for particular judgments and thus 
 discover that not all things of a given kind have a cer- 
 tain quality, but only some of them. Then the intellect 
 succeeds in comprehending the essential elements of 
 phenomena, and from hypothetical judgment attains the 
 apodictic or universal, which, being universal, is there- 
 fore necessary and certain. It appears to us that the 
 theory of cognition, contained in Hegel's "Phanomonol- 
 ogie des Geistes," best explains both the doctrine of the 
 evolution of ethical relations in general, and of individual 
 rights in particular, because it is applicable to all forms 
 of knowledge, both in its theoretical and practical aspects. 
 There may well be knowledge born in a moment of 
 action and after simple theoretical cognition of which 
 we must take account if we wish to resolve the problem 
 of knowledge in its integrity. Butthe"Phanomonolbgie" 
 begins with the most elementary and lowest form of 
 knowledge, that is, from the knowledge which has but 
 one object, and is not certain of anything except of the 
 existence of something distinct from itself, whose nature 
 and name it is ignorant of. In representation, the second 
 stage, knowledge knows that the object is such and such 
 an external thing with such and such qualities. In the 
 mind, therefore, knowledge has within itself intelligence, 
 a universality with its inherent and essential attributes, 
 one and indivisible. The purpose of knowledge, there- 
 fore, is always distinction and correlation. So the ego 
 is fundamentally the consciousness of consciousness or 
 auto-consciousness, because the object has the same form. 
 So the ego is identical with the object, but that it does 
 not recognize this is the cause of immediate or appetitive 
 auto-consciousness. If the ego and the object were not
 
 352 INHERENT RIGHTS 
 
 identical it could not have this desire, which is for its 
 own essence, to which it is attracted. And if it knew of 
 the identity this desire would cease to exist, being satis- 
 fied by practical knowledge of the object. When the 
 object is not another ego in which the subject can see 
 and find itself, but is a thing which is consumed in the 
 act of satisfaction, the knowledge of this identity of 
 subject and object is not attained. If one ego be placed 
 before another, at first it denies and excludes the other, 
 as each has a different sense, knowledge, will, and body. 
 Because of this exclusion there is a struggle between 
 the two auto-consciousnesses, a struggle of life and 
 death, in which each ego has a body. The struggle is 
 mortal, but after the death of one auto-consciousness the 
 other does not discover itself in the one which is dead: 
 preservation of life is necessary for recognition. Later 
 the victorious auto-consciousness grants existence to 
 its victim and makes it its subject, whence arises a new 
 relation between the two units, that of master and 
 servant. The ego, become master, no longer sees in the 
 servant an enemy, but takes thought for its protection, 
 and later, through habit, considers it as a part of itself; 
 the servant ego fears and obeys its master and thus 
 loses sight of itself. It works for the master and makes 
 its own circles of interest include that of the other unit; 
 hence, "Timor domini est initum spientise et libertatis;" 
 and is the groundwork of the discipline which conquers 
 natural freedom and fits man to control himself and 
 others. It is useful to observe with Spaventa, in his 
 "Principi di Filosofia," that the servant ego of the 
 "Phanomonologie" is appetitive auto-consciousness ; that 
 the ego in which appetition alone is aroused has neither 
 theoretical nor practical reason; and that the servitude 
 is not a constraint on a free ego, but is merely the edu- 
 cation of man about to become free. Freedom and
 
 HUMAN DEVELOPMENT 353 
 
 equality succeed slavery. The form of mind has within 
 itself the form of auto-consciousness, a perfect identity 
 always distinct in itself between the subject and object, 
 the beginning of logic. 
 
 203. Vico's Sketch of the History of Human Develop- 
 ment. History shows that from fear and slavery came 
 freedom. Vico teaches that civil peace and human free- 
 dom consisted in keeping within bonds the motives of 
 desire, which made their appearance in the world as the 
 effects of frightful superstition. With the first thunder- 
 bolts after the flood, men of gigantic nature were panic- 
 stricken and lost their pride and ferocity, and became 
 subject to a superior force, hiding themselves in the caves 
 of the mountains, whither they dragged women, whom 
 they held prisoners, keeping them always in their com- 
 pany throughout their lives. This gave origin to the 
 first human marriages with definite wives, children, and 
 fathers, and therefore created the family. Of a proud 
 and fierce nature, they ruled with a Cyclopean hand over 
 their children and wives. And, upon the growth of the 
 cities, men thus prepared were already disposed to civil 
 control. Providence ordained some economic republics 
 of monarchical form under the Patriarchs, who were the 
 strongest in sex, age, and virtue, and who, in the state 
 of nature or in the family age, had formed the first 
 communities, owning their own land, harvesting, hunting, 
 and effecting a family government over their servants. 
 But men, after a long period, blinded by the force of 
 their own evil deeds, which had resulted in an infamous 
 promiscuity of chattels and wives, grew shameless and 
 wicked ; and driven to a life of violence by the strife born 
 of this infamous license, they again sought refuge with 
 the Patriarchs, who received them into their protection as 
 retainers. Now, is not the dependence on the Patriarchs 
 of the retainers, deep-dyed with sensuous cupidity,
 
 354 INHERENT RIGHTS 
 
 fundamentally identical with the dependence of the appe- 
 titive or servant auto-consciousness or on the free and 
 master auto-consciousness? Is not this dependence the 
 source of freedom? The retainers, under the discipline 
 of the Patriarchs, little by little became pious, wise, and 
 virtuous, and the Cyclopean realms became civil and free 
 states. Bagehot, who applies the Darwinian theory to 
 political life and formation of national character, admits 
 that centuries of stagnation, monotony, and slavery 
 preceded the times of progress, variety, and freedom, and 
 are a preparative necessity. 
 
 204. The Struggle for Individual Freedom. From this 
 premise, it follows that inherent, essential, and universal 
 rights must be conceived as originally acquired, accident- 
 al, and particular powers of the individual. In other 
 words, those natural rights first appeared as acquired 
 powers in an accidental manner, as faculties introduced 
 by a causation deep in the moral or religious ideas of 
 certain social classes or by a new positive justice, and 
 developed in the struggle to conform to the conditions 
 of existence. Afterwards, such faculties, having the ad- 
 vantage of showing a higher degree of rational growth, 
 remained victorious in their struggle against the insti- 
 tutions which retarded their development, and, strength- 
 ened by custom and heredity, became original, necessary, 
 and common rights, after human nature had recognized 
 her own essence in them. The history of the right of 
 personality, although not a special and separate right, 
 but the source of every faculty, brings us face to face 
 with all the phases of the "ju ra innata." For centuries 
 the individual was the subject of acquired rights, par- 
 ticular and accidental, because all men were not born 
 free and those who were became so in a certain sense 
 through determinate deeds or acts, and so a complete 
 or incomplete right of personality came and went by
 
 SUBSIDIARY INHERENT RIGHTS 355 
 
 chance. For the slaves who represented the greater part 
 of the human race were not persons. They acquired 
 the "status libertatis" or incomplete personality by 
 "manumissio," and only got full individuality with the 
 possession of the "status libertatis civitatis et familise." 
 Freedom came and went by chance, which governed even 
 the position of the individual not born of a slave 
 mother, but of free parents in marriage, or at least of a 
 free mother. The chances of war and captivity caused 
 the loss of personality, and the "postliminium," which 
 depended on chance, revived it. Terrible, long, and 
 bloody were the struggles undergone and suffered from 
 the beginning against diverse and tenacious forms of 
 slavery, in the effort to extend personality to an always 
 increasing number of individuals, and to complete it 
 in those already called free subjects. The result of this 
 struggle has been a series of victories obtained one by 
 one. And with long custom and heredity, the common 
 consciousness has attained a conception of essential 
 and universal rights. Recently enough has come the 
 declaration of the rights of man, for even since the 
 French Revolution there are found in the codes of 
 European nations steps towards the denial of the right 
 of personality. It is only during the past few years 
 that freedom is not among us a cloak for the protection 
 of usury. And but lately has the senseless and barbar- 
 ous right of the "jus albinatus" developed into its 
 softened and useful forms of a system of reciprocity 
 among most nations. In Italy there is wise legislation 
 by which a foreigner, because he is a man, is permitted 
 the enjoyment of civil rights. 
 
 205. Subsidiary Inherent Rights in the Struggle for 
 Development. The other inherent rights to physical 
 and moral life, freedom, and equality are contained in 
 the greater right of personality, even imperfectly thought
 
 356 INHERENT RIGHTS 
 
 of. At the beginning, these faculties were acquired, 
 accidental, and particular, as the germ from which they 
 sprang; that is, the human unit, which was disregarded 
 as we have seen by the ancient State, the arbiter of 
 his life and death. By chance, he was born free or 
 slave, and slaves had no right to life, limb, or good 
 name. Freemen had rights if their nation had not re- 
 tained compulsory military service or if the father was 
 not given the "jus necis." For a long time, it was not 
 a crime to kill a child. The right to physical and 
 moral life, therefore, was always accidental, here acquired 
 with freedom, and there with citizenship, belonging to 
 some and not to all. In respect to freedom we should 
 recall with Hegel that in the Orient the despot alone was 
 free, and that in the ancient world, freedom was 
 restricted to a portion of humanity and had at bottom 
 a political character and was always freedom in or 
 through the State. Such was the equality which, denied 
 by the law of caste, was given only to citizens. From 
 citizenship in an ideal state, Aristotle says, farmers and 
 artizans should be excluded, because excellence is 
 not compatible with manual labor. The conditions of 
 excellence, and here we mean political excellence, are 
 leisure, and therefore the true components of the city 
 are judges, warriors, priests, and counselors. The right 
 to freedom and equality became essential and common 
 attributes with the appearance of the inherent right to 
 physical and moral life ; that is, when the conception of the 
 personal unit, after many struggles, became that of man. 
 206. Rights not Distinct Abstractions, but Components 
 of Life. The intellectual modern philosopher no longer 
 looks upon inherent rights from an abstract point of view 
 as powers of the individual in a supposed state of isola- 
 tion without correlation to duties, but connects them, 
 and reproduces, under new and more rational forms, the
 
 RIGHTS COMPONENTS OF LIFE 357 
 
 classical doctrine of the relation of ethics and politics. 
 Our juristic philosophy objects to formal abstractions 
 for another reason, and treats inherent rights always in 
 relation to the acquired rights, a relation based on the 
 ideal innate in nature, life, and history. If law is a human 
 idea, if it is true and certain, it must include all elements, 
 essential and accidental, universal and particular, pri- 
 mal and acquired. The mind begins by considering it 
 from casual, particular, acquired, or temporary aspects 
 and afterwards comes to the contemplation of its neces- 
 sary, universal, primal, or eternal characteristics. Vico, 
 therefore, finds fault with the principles of natural law 
 and with Grotius, Selden, and Puffendorf for having be- 
 gun the teaching of its theories, not from the time in which 
 the gens began, but from the time when natural reason was 
 first fully developed. The criticism of Vico is contrary 
 to the teachings of Kant, Rousseau, all the representa- 
 tives of the abstract movement of natural law, many 
 ancient philosophers, and the Roman jurisconsults, be- 
 cause they generalize from their time and believe all that 
 belongs to the human ego is primal. Neither can modern 
 thought be based on an hypothesis of the state of nature, 
 so contrary to the conception and history of man, whose 
 development, intellectual, physical, and moral, is not 
 possible without society. The idea of contract as the 
 origin of the State and of society is not primitive, as we 
 have said. 1 Contract that has for its object the exchange 
 of utilities can exist or not exist; law and the State must 
 exist. The contract which would establish a State pre- 
 supposes the same State to execute and enforce it. 
 Examine with critical attention the French Declaration 
 of the Rights of Man, made in 1789 by the Constituent 
 Assembly, and you will find all the abstract belief 
 in natural law bound up in it. It speaks of rights 
 
 l Cf. $ 197 ante.
 
 358 INHERENT RIGHTS 
 
 anterior to society, and supposes that the natural man 
 was born with these rights; makes no mention of any 
 duties, but admits the anarchical right of resistance, and 
 confuses the will of the majority with law, enacting 
 the principles of Rousseau. The English Bill of Rights 
 of 1689, and the American Declaration of Independence 
 do not lend countenance to such ideas, but sanction his- 
 torical rights and follow the feelings, traditions, and cus- 
 toms of their framers. The American Declaration of 
 Independence, however, drawn up a century later than 
 the English Act, shows in its Preamble some influence of 
 the dominant philosophical theories of the XVIIIth Cen- 
 tury, though these do not alter its concrete, historical 
 character. 
 
 207. Italian Philosophers are Opposed to the Doctrine 
 of a State of Nature. In Italy Genovesi, the author of 
 "Diceosina," is opposed to the existence of a state of 
 nature and cannot imagine natural and acquired 
 rights without civil society, because man strives for 
 happiness, for which law is instrumental, and happi- 
 ness is only attainable in the equilibrium between 
 individual cupidity and the social sense, an equilib- 
 rium obtainable only by law, which protects rights 
 and remedies their violations. Spedalieri in his book 
 "I Diritti dell 'Uomo," even better than Genovesi, 
 before the abstract movement was so well developed 
 either in doctrine or practice, made a careful study of the 
 state of nature and showed clearly that it had never ex- 
 isted and that a state of society is necessary to the full 
 corporeal and spiritual development of man. He discards 
 the doctrine of contract as the base of all obligation, be- 
 cause there are obligations derived from natural facts, 
 from necessity, the synonym of reason, and not from 
 agreement, and he enumerates the natural rights of 
 man as those which look to life, development, and prop-
 
 AN EQUIVOCATION 359 
 
 erty, and freedom to act concerning these three rights, 
 freedom of thought, and the use of force in self-defense. 
 He adds, also, the right to the aid of one's fellows, which is 
 but a limited right, except in cases of extreme necessity. 
 Natural rights, according to him, owe their origin and use 
 to the social state, and can only by a fiction exist in a 
 state of solitude. 
 
 208. An Equivocation, the Confusion of Status and Con- 
 tract. Before we reach the end of this chapter, we must 
 state an equivocation. Maine has said that the progress of 
 law consists in the change of regime from status to con- 
 tract. The status is necessary, superimposed, coercive, 
 and can well be considered as the necessary effect of the 
 principle of community of primitive times. Spencer enun- 
 ciates this theory when he affirms that progress consists 
 in the advance from a system of obligatory or military 
 cooperation to one that is industrial or voluntary. 
 Fouillee, with the same premise, places the specific dif- 
 ferences of social phenomena in degree of freedom of con- 
 sent. The equivocation lies in confusing two distinct con- 
 ceptions, the conception of individual freedom and that 
 of contract, as the source of all ethico-juridical rela- 
 tions. Without doubt, the emancipation of the indi- 
 vidual from the ancient yoke is a sign of progress, but it 
 does not mean that the moral world depends upon his will 
 and is his arbitrary creation. There are many relations 
 and institutions not in the least dependent upon the wills 
 of the parties, as matrimony, or the State. These are not 
 voluntary in the sense that they are made or dissolved 
 at will, though such relations or institutions are made 
 by the agreement of individuals in the sense that they 
 can marry or not, or enjoy one political form or another. 
 The ability to contract is not the source of law which is 
 partly above the individual, and unaffected by his con- 
 tracts, although it demands the acknowledgment and
 
 360 INHERENT RIGHTS 
 
 voluntary obedience of the individual because he is a 
 factor of the ethical whole. The ability to contract, there- 
 fore, is not the mark of the social fact, in all its integrity 
 in human times, and a fortiori was not so for the same 
 reason in the past, which was dominated by the rigorous 
 regime of status.
 
 DIFFERENT THEORIES 361 
 
 CHAPTER III 
 INCORPOREAL PERSONS 
 
 THE SCOPE OF INCORPOREAL PERSONS. THE THEORIES OF 
 FICTION AND OF EQUIVALENCY. THE THEORY THAT LOOKS 
 UPON THE INCORPOREAL PERSON AS A VEHICLE. THE 
 THEORY OF THE COMPLEXITY OF RIGHTS "SUI JURIS." THE 
 IDEAS OF THE GERMAN PUBLICISTS. THE REAL SUBJECT IN 
 A CORPORATION OR FOUNDATION. THE RIGHTS OF THE IN- 
 CORPOREAL PERSONS AND THE "JUS CONFIRMANDI" OF THE 
 STATE. THEORY OF GIORGI. 
 
 209. Are Incorporeal Persons Fictional or Real? 
 Incorporeal or collective persons are the subject of 
 civil rights and public duties. Instituted, as they are, for 
 purposes distinct from those of individuals, in extent and 
 length of life they exceed the latter's power. Is the 
 incorporeal person a fiction or a reality? This question 
 is studied more by students of Roman and modern civil 
 law than by philosophers of law. Accurate and pro- 
 found thoughts on this theme, however, are not lacking 
 in the works of Vico, Hegel, Rosmini, and Trendelen- 
 burg, as we shall see, but they do not contain a true 
 philosophico-juristic theory. Ahrens has felt the need 
 of such a theory, although he has not shown whether he 
 thinks incorporeal persons are fictions or personifications 
 by the State, and does not proceed in a philosophical 
 manner, because he starts out with a presupposition. 
 
 210. Different Theories about Incorporeal Persons. 
 Many jurists cannot believe in the real existence of 
 incorporeal persons, because they think that reality
 
 362 INCORPOREAL PERSONS 
 
 connotes only the individual or corporeal person, per- 
 ceptible to the senses. They are governed by the same 
 principle as the Ionic philosophers and the Sophists; 
 that reality lies only in natural and phenomenal objects. 
 These jurists are in accord with the phenomenalists and 
 conceptionalists of the Middle Ages, since they admit the 
 reality only of the individual -and consider the universal 
 as a name or as a simple abstract conception without 
 real existence. In this they differ from the positivists 
 of to-day, who state that the conception of objects was 
 not less real than the sensations in which they originated, 
 and who have no scruple in regarding incorporeal persons 
 as existent among true organic entities. Perhaps the posi- 
 tivists go too far in making the ethical organism the full 
 equivalent of the physical, but there is no doubt that they 
 look upon them as real persons. At present the posi- 
 tion of the jurists resembles that of the great masters 
 of the orthodox economic school, who denied that 
 immaterial products had a real value. But the jurists 
 are less logical than the economists because they recognize 
 "res incorporates" and admit at least the personal reality 
 of the State, because this cannot be held to be a fiction. 
 Savigny, for example, who does not believe that juridical 
 persons are real, says that the State is the corporeal form 
 of a spiritual unit. Those economists who teach that 
 immaterial products have no real value follow the theory 
 to its logical conclusion that real value lies only in the 
 "res corporales" and do not go out of the sphere of 
 mechanism when they talk about the supreme incorporeal 
 personality, the State. We must remember that the 
 classical school of political economy looks upon the State 
 simply as the means for the protection of the life and 
 goods of the associated individuals, or at least as a 
 mechanical aid for the attainment of human ends, to 
 quote Romagnosi, and never as a person with attributes 
 of its own.
 
 NON-EXISTENCE IMPOSSIBLE 363 
 
 211. A Contradiction. Rights without Subjects. 
 The jurists who doubt the reality of the incorporeal 
 person must solve the great contradiction between the 
 rule of law, which requires a subject for a right, and 
 the incontestable fact of some combinations of capacities, 
 which would in their theory be without true subjects. 
 Many of them try to eliminate the contradiction by call- 
 ing the reality a fictitious and artificial subject, others 
 by so transforming and amplifying the idea of law as 
 to create the possibility of a right without a subject. All 
 of them construct, then, the doctrine of the juridical 
 person with the gift of the senses and with the mere 
 abstract virtue of thought, because, inasmuch as the 
 subject is artificial to that extent, the unions of rights 
 without a subject are abstractions. They cannot be 
 otherwise if reality lies exclusively in material objects. 
 
 212. Non-existence of Incorporeal Persons a Logi- 
 cal Impossibility. Puchta in his "Vorlesungen iiber 
 das Heutige Romische Recht," Savigny in his 
 "System des Heutigen Romischen Rechts," and 
 Unger in his "System der Oestreichischen Almeinen 
 Rechts," teach that incorporeal persons are useful 
 fictions of positive law, or ideal subjects created 
 by the State. This theory falls into the contradiction 
 which it tries to avoid; for, on one hand, there 
 cannot be a right without a subject, and man alone 
 is the subject of rights; on the other, there are combi- 
 nations of rights without real subjects. Fictions and 
 personifications will not do, because, by imagining the 
 subject or creating the person, we recognize that there is 
 none, while there must necessarily be one. So, when the 
 theory under consideration is given the most favorable 
 interpretation, and we say that the juridical person is 
 imaginary or artificial only in respect to private law, 
 while it is existent and undeniable in the spiritual com-
 
 364 INCORPOREAL PERSONS 
 
 munity, as universality, and a subject of public rights, 
 the contradiction is not avoided, because the collective 
 person of public law is always in private law a fictitious 
 individual created by law, and the imaginary subject 
 of rights of ownership. Private law cannot consider any 
 other subject than a real person. Furthermore, while under 
 this theory man alone is the subject of rights, its cham- 
 pions must finally admit that rights can act upon a subject 
 which is not a natural human being. An incorpo- 
 real person, according to the jurisconsults, is not a 
 de facto subject, and therefore does not enter into the 
 domain of fiction in its proper signification. By means 
 of a fiction, an act is shown in connection with another 
 act juridically regulated, and is given the same relation 
 to law as its model has. Two real subjects are neces- 
 sary to a fiction; but in this case there is only one, the 
 separate, corporeal person. 
 
 213. The "Quid Simile" Theory of the Incorporeal 
 Person. Randain his book "Der Besitz nach Oestreich- 
 ischen Rechts," Bohlau in his work on the subject 
 of law, Bruns in his article in the "Encyklopadie" of 
 Holtzendorff try to escape the contradiction of the 
 theory of personification by saying that the attributes 
 not belonging to individuals should not be attributed to 
 artificial and fictional subjects, although they should 
 be equal, in the eyes of the law, to the individuals 
 themselves. Here there is no fictional person, but a 
 "quid simile" of a person, which exercises its functions 
 and has its place, "personae vice fungitur." But the 
 three writers cited above do not in the least answer 
 the question ; they allege the fact that they must prove, 
 that is, the existence of property and rights not belong- 
 ing to any physical subject, as if they had a subject. 
 Nor is the much feared contradiction avoided by the 
 conception of property without an owner, because this
 
 IHERING'S THEORY 365 
 
 destroys the well-known principle that there can be 
 no right without a subject. And further, it remains 
 to be shown what is the "quid" which has the attri- 
 butes of a person without being a person. Evidently 
 here the function is confused with the fiction, which is 
 the object of such abhorrence. 
 
 214. Ihering 1 s Theory of Individuals as Subject 
 of Rights. Ihering, in his "Geist des Romischen 
 Rechts," fights the theory of personification and 
 assimilation and prepares the way for the champions 
 of the existence of private rights without a subject, 
 denying that there are things which do not belong to 
 individuals and alleging that the juridical person is not 
 the subject of rights but a simulacrum, a simple mask, 
 an empty form, an exterior shape invented for con- 
 venience and created as a means of mediation. The 
 juridical person is the technical means of developing 
 juristic relations between the members of a corpora- 
 tion, or those interested in it, and strangers; the true 
 subject is man, the efficient subject of rights, he who 
 enjoys them. In a corporation or association, the sub- 
 jects are those who enjoy the advantages derived from 
 the moral being. The abstract entity does not enjoy 
 them; it cannot have, therefore, any interest, scope, 
 or rights. Ihering confuses facts and rights. It is one 
 thing to see who has a right, or rather who enjoys it, 
 and another to discover the subject of the right itself. 
 Certainly a man can enjoy the advantages growing 
 out of wealth, without being the owner and disposer 
 thereof. The citizens of a commonwealth and the sick 
 are not the owners of the capital of the community 
 or of the hospital, although they reap the benefits. In 
 a word, it is always necessary to distinguish the mate- 
 rial enjoyment from the ideal enjoyment, the posses- 
 sion from the ownership of rights, since one can have
 
 366 INCORPOREAL PERSONS 
 
 the first without the second; but Ihering does not get 
 away completely from the idea of personification, since 
 his juridical person needs an apparent subject or mask. 
 He founds his theory (which he believes concrete and 
 based upon the strictest realism) on an abstraction, 
 regarding the elements entirely by themselves and 
 separate from their natural centre of adhesion. 
 
 215. The Doctrine of Rights without a Subject. 
 Windscheid and Brinz, in their "Lehrbuch des Pan- 
 dekten," and Bekker, in his study of the subject of rights, 
 go further than Ihering and combat the well-established 
 principle that rights, not belonging to individuals, must 
 have a subject. The idea of law, they say with Demelius, 
 in "Die Rechtsfiktion," is abstract in dealing with 
 facts and particular institutions; if the existence of a 
 combination of rights without a subject is a fact, 
 we must conclude that the idea of law should comprehend 
 such a fact and contain the possibility of rights without 
 a subject. Windscheid defines a right as an impersonal 
 capacity of will, which only needs a subject in its exer- 
 cise to become real. Brinz distinguishes wealth belong- 
 ing to a person and that devoted to a purpose, laying 
 stress on the fact and leaving the fiction once for all. 
 Bekker denies that the will is the subject; in his mind, 
 the name or title is that which confers upon a man 
 the free disposition of a right; for example, the 
 name blacksmith gives a man a blacksmith's rights. 
 To this theory the thought is opposed at once that 
 law is not reducible to a simple mental aggregation 
 of determinate properties separated from the facts. 
 There is in such a theory, as in every other universal 
 conception, a series of necessary elements and relations 
 which simple experience cannot furnish because they are 
 by nature contingent and particular. The hypothetical 
 basis of this theory, therefore, is erroneous, and equally
 
 THE DOCTRINE OF RIGHTS 367 
 
 erroneous are the conceptions which arise from it. The 
 definition of a right, given by Windscheid, is not correct, 
 because a capacity of will is an adherent right and 
 impersonal only in the sense that it can be attributed 
 to this or that man, but not in the sense that it can 
 separate itself absolutely from its subject and become 
 a capacity of will, a power without a subject, to exer- 
 cise this by a conception without content. The argu- 
 ment of analogy from the case of a child has no weight, 
 because children are potentially able to will. If, in 
 this case, the characteristics are found, the substance 
 is certainly not lacking, but the impersonal capac- 
 ity to will does not exist, and therefore it must repre- 
 sent what is non-existent. Neither has the opinion of 
 Brinz a better foundation, because the idea of prop- 
 erty rights sui juris, independent and existent, implies 
 either personification of them or the object from which 
 they are devolved. The essential characteristic of prop- 
 erty is its dependence on man. It consists in the 
 sum of the means necessary and useful for the attain- 
 ment of personal development. This theory is an 
 abstraction which leads on one side to the elevation of 
 the inanimate, to the status of a juridical subject, and on 
 the other, debases man to the inanimate. An end cannot 
 be self-attaining, arising from property without a subject, 
 or without referring to one in a manner not accidental, 
 and therefore it is not true that there can be rights 
 without a subject. Bekker proceeds along the road of 
 indefinite personification of animate and inanimate 
 objects, and clearly confuses the uncertain subject of a 
 right with its object. The title of blacksmith can belong 
 to one or another individual, but cannot lack a subject. 
 Nor do the successive possessors of an office, for example, 
 a king, form a juridical person, as Kant and Windscheid 
 say, because the office or the crown have no will; the
 
 368 INCORPOREAL PERSONS 
 
 true subject of the rights in that case is the State. 
 Even the right of inheritance is not a juridical person, 
 for the possessor or subject is not lacking, but only 
 uncertain. Here we must remember that the right of 
 the heir, who enters, is considered as beginning at the 
 moment of the death of the "de cuius." Neither does the 
 appointment of a trustee show the presence of a juridical 
 person, because a trustee can be appointed for an absent 
 heir. 
 
 216. Wealth Cannot be Subjective. The followers 
 of the doctrine of which we speak confess some- 
 times that a right cannot be without a subject be- 
 cause a right is subjective, but allege that it is not 
 absurd to admit of corporate or associate property 
 rights without subjects because they are a simple 
 collection and objective union. They add that this 
 property, as a subject, is not a mere collection of things 
 but the sum of them made one, organized, and raised 
 to an autonomous unity by virtue of its purpose 
 or the unifying will which dominates it, with the ap- 
 proval of the State. But property objectively is a 
 part, an element, and not unified totality. Above all 
 we must remember that there is not the slightest devia- 
 tion from the principle of the doctrine recognizing that 
 there is no right without a subject, for this is founded 
 entirely upon the opposite conception. In the second 
 place, we must observe that property looked upon as an 
 organized totality cannot be looked upon as a subject 
 of the unifying principle or central organic force, which 
 is purpose or will. Purpose and will rule and shape 
 the totality, reduce it to a true unity, and there- 
 fore the subject should be found in such factors. Things 
 are things and form objectivity; purpose and will by 
 their natures belong to the subjective sphere. Pur- 
 pose is the limit of the will and is essentially connected
 
 INCORPOREAL PERSONS EXISTENT 369 
 
 with it. Purpose can be defined in terms of will, con- 
 sequently the subject can be found in the capacity of 
 will. Purpose cannot be attained without will, and 
 on the other hand, the subject can only be will if it 
 organizes the totality of things with regard to man 
 and makes it a unit. Property cannot be conceived 
 without a person to whom it belongs, without a will to 
 which it can be united and by which it is animated. 
 Property is a personal attribute of the individual, and 
 a person can never be an attribute of property. 
 
 217. Incorporeal Persons are Existent. The jurists, 
 who do not believe in the real existence only of 
 sensible and simple objects, are disposed to believe, as 
 is logical, in the reality of incorporeal persons. The 
 general conviction of a real personality in the State, 
 which is seldom considered a fictitious entity, the 
 knowledge that the theories just described cannot be 
 applied to public law, the ideas of philosophers 
 about the State itself have contributed not a little 
 to the awakening and full development of this belief. 
 Vico wrote that as from the aggregation of bodies called 
 "comitia" with "coeundo"and "comeundo" has come the 
 body of the republic, thus from the unity of wills has 
 been found their mind, more gracefully defined by 
 Papinian as the "communis reipublicae sponsio," or the 
 general will of all citizens to have equal rights. The 
 mind of this will is civil authority, reason, and archi- 
 tectural justice. From this mind and spirit is derived 
 civil power, which makes the person of the republic, 
 whose life is public health, which comprehends the lives 
 of all individuals. The great Neapolitan philosopher, 
 to whom we have referred, spoke of the national soul 
 as a live and not a blind form. Veggasi is right 
 in saying, as many others have also said, that the con- 
 ception of the existence of incorporeal persons, and
 
 370 INCORPOREAL PERSONS 
 
 especially of the real personality of the State, owes its 
 origin to the doctrine of Bluntschli in his book"Deutsches 
 Privatrecht." In Germany, too, Schelling, before Blunt- 
 schi, raised the standard of ethical ontology, and Hegel 
 regarded the State as a system of the moral world, as 
 an auto-conscious substance, founding it on the reality 
 of the universal will, which is the sum of individual 
 wills, a reality very different from that of the Herbar- 
 tian Thilo. But at first we must notice that the founder 
 of the historical school, Savigny, had recognized the 
 actual existence of the greatest of incorporeal persons, 
 the State, in spite of his theory of personification. After 
 Schelling, Hegel, and Savigny, Trendelenburg revived 
 the Greek political conception, harmonizing it with the 
 principles of modern times, and came to the same con- 
 clusion, that is, to the recognition of the State as a 
 true unit, an ethical organism, as abstract man in the 
 particular form of a people. In Italy philosophers 
 of law, even before Bluntschli, admitted the existence 
 of incorporeal persons in treating of the State and society. 
 Romagnosi often spoke of the State as a perfect and 
 vital interpenetration of the individual intellects, 
 wills, and powers. And Rosmini, without distin- 
 guishing society from a moral person, distinguished the 
 internal and invisible part, which forms the spirit of 
 society itself, and the external visible part, which 
 constitutes its mass. Society is real and vital, and 
 because real and vital is the concurrence of the wills, 
 which are its foundation. 
 
 218. A New Witt, the Resultant of the Union of Two 
 Wills. Baron, Beseler, Lasson, and not a few others 
 in Germany agree with Bluntschli on the existence of in- 
 corporeal persons; they look upon the State and moral 
 entities as real organisms, efficient subjects of public 
 rights; but of their personality in private law, that is, of
 
 HIGHER FORM OF EVOLUTION 371 
 
 their civil capacity, they either do not speak or else, fol- 
 lowing Savigny, make it a mere fiction, or perhaps a 
 presupposition. Zitelmann, in his book "Begriff und 
 Wesen der Sogenanten Juristischen Personen," states 
 a full theory applicable to private and public law. He 
 essentially conforms to philosophical principles, although 
 he does not speak accurately, and uses not a few meta- 
 phors and similes. He starts with the principle of 
 persona] will, in which rights are inherent, and admits the 
 reality of this principle in juridical persons as well as in 
 individuals. By being subject of rights, the juridical 
 person acquires a potential or actual capacity to will; 
 that is, personality, which should be recognized by the 
 State. The result, therefore, is that the personality of 
 the entity is not a creation of the statutes, as some 
 believe, but of the union of many wills considered, not 
 in their integrity but in their reference to a definite 
 purpose, creating a new, general, and efficient will, which 
 is the natural basis of a corporation. Here happens what 
 is always observed, to quote Zitelmann; that is, that 
 when two forces are associated by a unifying third, the 
 two forces lose their individual existence and form a new 
 force with the common properties of its components. 
 In law there is the example of the "universitas bono- 
 rum," which has its power as a unity distinct from the 
 separate elements composing it. 
 
 219. This New Force is a Higher Form of Evolution. 
 We can add to what our author says, that if the cor- 
 poration is an intimate concurrence of many wills for 
 a given end, and if it is a totality or ethical organism, it 
 is, in a certain aspect, more real than the individuals, 
 because it possesses greater complexity of parts and repre- 
 sents a higher form of evolution. Without human life 
 and the various social nuclei, the individual is an abstrac- 
 tion. Mass and, therefore, true reality, are found in
 
 372 INCORPOREAL PERSONS 
 
 organic compositions, in communities, in the centre of 
 the union of parts whose existence have their significa- 
 tion through the existence of the whole. Nevertheless, 
 the parts of the ethical organism are free and individual 
 entities, and besides being subordinate participants in 
 the life of the whole, have their own lives and appro- 
 priate ends. An association is a special ethical organism 
 consisting of an entity entirely distinct from the indi- 
 viduals and bringing about results which are of an imme- 
 diate advantage to it. The unity is not an abstract 
 entity incapable of enjoyment, as Ihering thinks, but 
 is a real and single power which arises from the profound 
 interpenetration of many wills. 
 
 220. A Corporation Must be an Organism. Zitel- 
 mann does not and cannot show clearly the real per- 
 sonality of a corporation unless it is an ethical organism 
 derived from the interpenetration of the component 
 wills. Its essence lies in the irrevocable act, and in the 
 recognition by the State by which a juridical subject 
 consecrates some of its capacities or all its wealth to a 
 definite purpose. They err who think that the union 
 or association of many persons to follow one another in 
 succession for the attainment of an end is an ethical 
 organism, for, though such persons in their quality of 
 agents have more power than as individuals, they do 
 not constitute the more substantial elements of the 
 institution. A priest, for example, is not, in respect to 
 the benefice which he enjoys, a member of an organic 
 series of priests, his predecessors and possible successors, 
 established by a determined act of the* Church and having 
 a quality of subjection to rights, but he is simply agent, 
 a method by which the person can exist. The idea of 
 association is spontaneously connected with that of the 
 founder whose act the association is, and therefore the 
 necessity arises to distinguish in our definition this
 
 A CORPORATION AN ORGANISM 373 
 
 similarity, and to lay emphasis upon the secondary or 
 perhaps accidental elements. The act of foundation is the 
 very will of the founder become objective, concrete, and 
 irrevocable, developing along its own lines, and is the 
 subject of rights contained in the institution itself, and 
 therefore the natural origin of the personality that the 
 State recognizes. But this will, although separated 
 from the person and become objective, is fundamentally 
 subjective and personal. It is an act distinct from the 
 power, though not conceivable without it, suitable to 
 give form, quality, and coordination to the association. 
 The determinate will in such form has nothing in com- 
 mon with the impersonal will of Windscheid, who dis- 
 tinguishes the subject only by the exercise of its rights, 
 and not by its essence. Neither should it be confused 
 with the purpose without subject, the conception of 
 Brinz, because the purpose for which the powers are 
 given is subsequent to the will of the founder, and is the 
 termination of the volitive act of the person, and pre- 
 supposes the will, and the volitive subject which renders 
 objective an act suitable to the end desired. Here there 
 is a case of the decomposition of the empirical ego, of 
 the ego consisting of successive growth ; in other words, 
 the integration of concrete subjectivity. The empirical 
 ego can be distinguished from diverse particular egos. 
 This is possible under normal and pathological condi- 
 tions. There were two egos in Manlius Torquatus, 
 when he said to his son, "As your father, I praise you, 
 but as your captain, I am going to condemn you to 
 death." Psychologically, a plurality of persons is pos- 
 sible in the same subject; and juridically, an individual 
 can have even more personalities. This is the reason 
 why it is not a self-contradiction to raise the act of will 
 or the will in respect to a single and fixed purpose to the 
 grade of a subject or individual. In conclusion we can
 
 374 INCORPOREAL PERSONS 
 
 say that if the institution is not made an ethical organism 
 by incorporation, it at least comprehends the same 
 principle and personality, and therefore the capacity 
 to will. In corporations the subject is the new and single 
 will which is born from the interpenetration of many 
 wills; in unincorporated associations the subject is 
 the will become objective by the act of the same will 
 of the founder. There are some institutions that are 
 equinumerant to the wills although the latter are 
 resolved in them. Here comes a peculiar difference 
 between a corporation and an association. 
 
 221. Incorporation. The theory stated is deduced 
 as a corollary from what we have already said, from 
 a fundamental principle of the philosophy of law; 
 the person consists really in the capacity to will. Now 
 this capacity is found both in corporations and as- 
 sociations. In the former, it is one with the new 
 and distinct unity growing from the interpenetration 
 of many wills; in the second, it is the same as the 
 will of the founder become objective in a single pur- 
 pose. The incorporeal person is raised to the equal 
 of the juridical and civil subject by the State after its 
 social advantages are recognized, and has property rights 
 and sometimes political rights and powers of guardianship. 
 It has rights of property, "jura in re aliena," rights of 
 possession, contract, and testamentary succession. It 
 lacks, however, a right to delegate, and is in a condition 
 analogous to that of a minor, hence its representative 
 government. The State does not create but only registers 
 incorporeal persons, because legal authorization deals 
 with the preexistent personality of the moral body; that 
 is, of the capacity to will. Where this is lacking, there 
 cannot be any grounds for authorization. Creation is 
 synonymous to existence of the fictitious person or 
 personification, and is as absurd as either of them.
 
 QUESTION OF REALITY 375 
 
 In fact, it amounts to the same thing. It is strange 
 that Savigny teaches that juridical persons have not 
 their origin and end in the State, while they have, in 
 his mind, an artificial existence. If juridical persons 
 are fictitious or artificial, it is not possible to deny that 
 they owe their existence and dissolution to positive 
 law. The State registers not only the existence of incor- 
 poreal persons, but first examines the question of the so- 
 cial utility to be derived from the institution of the 
 moral entity, and then recognizes and raises it to the state 
 of a simple subject, watching and controlling it. The 
 law of the State is a "jus confirmandi," and if it is to be 
 called a "jus constituendi," the notion of creations 
 must be abandoned and only that of an elevation of 
 an initial person to a juristic person relied on. We 
 understand that the State has the powers of taking 
 away from moral entities already constituted the 
 capacity that it has given them when their existence is 
 no longer justified or when they run contrary to the 
 ends of civilization and social utility. 
 
 222. Incorporation Does not Affect Question of 
 Reality of Association. Giorgi, in "La Dottrina delle 
 Persone Giuridiche," has severely criticized the opinions 
 of various writers on this subject, expressing a theory 
 of his own that completes to his satisfaction those 
 of Bluntschli, Baron, Lasson, and Beseler. He accepts 
 the way in which they consider the State and collective 
 entities, but considers it defective as to associations. 
 According to Giorgi, associations have substantially 
 the same real essence as corporations, that is, an 
 existent collectivity, and therefore cannot be reduced 
 to a fictitious personality. This conception had been 
 developed by Fisichella, in his book "Sulla Realta 
 delle Persone Giuridiche," as Giorgi frankly confesses. 
 The whole reasoning in aid of this thesis can be out-
 
 376 INCORPOREAL PERSONS 
 
 lined thus : The wealth of an association comes from the 
 people; it is intended for the accomplishment of general 
 duties, and is given to the people as its true owner. The 
 assignment to a board of managers of a separate fund, 
 department, or particular branch gives it a single and 
 autonomous being but does not change the subject. It 
 multiplies only juristically and administratively the col- 
 lective personality, in other words the people, with the 
 meaning either of the whole political aggregate or its 
 subdivisions by local boundaries for administrative rea- 
 sons. Two methods can be followed by the sovereign 
 power for the satisfaction of social needs ; it can provide 
 directly with a simple and undivided exchequer, or it can 
 dismember this in many parts, conferring on each an au- 
 tonomous individuality, and make it proportionate to 
 the needs for the attainment of this or that other end, 
 hence moral entities and associations. 
 
 223. More Contradictions in Distinguishing Corpor- 
 ations and Associations. The doctrine stated is in con- 
 tradiction to the principle with which the author started 
 out. To his mind it is ridiculous and metaphoric to 
 assimilate society to an organism: for example, such 
 expressions as "the social organ," "the social body," 
 "the social will," "the social or national soul." Society 
 is the mere aggregation of individuals, a simple collec- 
 tivity, which cannot be conceived as an entity or 
 organic unit. Giorgi declares specifically that society 
 is nothing but a collective entity and indirect means 
 for the satisfaction of individual interests, and therefore 
 must fall in line with the atomic theory. But if society 
 is not a spirit or consciousness and will, and if it is a 
 collective entity and nothing else, how can it have its 
 own exclusive, so called, public rights? How can Giorgi 
 agree with the ideas of the German writers on public 
 law who regard the State as an organism, if he says
 
 GIORGI'S THEORY 377 
 
 in so many words that this belief is an untrue and 
 ridiculous metaphor? Giorgi states that man alone being 
 capable of duties, he is, therefore, the only possible 
 subject of rights, which presuppose duties, which in 
 their turn demand consciousness, will, and responsibility. 
 The human community has not a psyche, and therefore 
 cannot have duties nor rights of any kind whatsoever, 
 exclusively its own. Further, we should observe that 
 Bluntschli, Baron, Beseler, Lasson, and the others tend 
 to make the principle of public law the base of the juris- 
 tical personality of moral entities, and therefore are reso- 
 lute in their denial that commercial associations founded 
 for private gain are juridical persons, excluding every 
 entity which has a private character. The same cannot 
 be said of Giorgi, who says that he bases his reasoning 
 on the principles of these writers, and yet holds with 
 ponderous arguments that the commercial associations 
 are true juridical persons. 
 
 224. The Members Cannot be the Subject of Corporate 
 or Associate Rights, Giorgi' s Theory. According to Giorgi, 
 the subjectivity of corporations and associations lies in 
 the existent collectivity. Fixing our attention for a 
 moment on this collectivity as the subject of the 
 rights of corporations, we must remember that it is 
 not intended in the sense that Bolze and Ihering 
 use it; according to Giorgi himself, collectivity can- 
 not be considered as plurality in order that we may 
 attribute to individuals the rights of the juridical person, 
 and no longer need to recognize that subject separate 
 from them. This would be making a juridical person. 
 Neither can we understand it as essentially one with its 
 separate members, even though they have interests in it 
 and enjoy it, because it is one thing to define the subject 
 of rights and another to determine the question of the 
 enjoyment of the advantages connected with it. If
 
 378 INCORPOREAL PERSONS 
 
 collectivity cannot be defined in one way or the other, 
 we must abandon once for all the instrumental point 
 of view, and consider the community as an organic 
 unity, and come to the theory of Zitelmann, at least 
 in its essential particulars. Collectivity, however, as 
 an organic unity, is not simple collectivity, but some- 
 thing more than that. It is the single will which arises 
 from the interpenetration of individual wills, of which 
 we have spoken before. 1 This will is a new vital and 
 distinct principle very different from the unity which 
 an arithmetical formula expresses. The common will 
 has nothing to do with the 7+5=12, and therefore 
 with Zitelmann's erroneous example, but Giorgi does not 
 believe in this theory of will, which is inconsistent with 
 the operation of nature, he says, in separating the will 
 from the individual, and in making will the essential in law, 
 and man but a "quid superfluum." But this theory, to 
 tell the truth, is not inconsistent and does not presuppose 
 the separate existence of will. In ethics and law man is 
 considered only as will and not as a simple theoretical 
 mind or phantasy. Mind and phantasy are activities 
 which ethics and law regard only in so much as they are 
 comprehended in will. Is it not possible that both of 
 them enter into practical reason? Reason is called prac- 
 tical when it has for its object the welfare which is the 
 end of will. Will is not accessory in those sciences but 
 is essential, even as man, the subject of will, is essential. 
 If the conception of will without man is impossible, 
 equally impossible is that of man without will. On this 
 account, we have not subscribed to Windscheid's theory 
 of the impersonal will, and have said that a capacity of 
 will without a volitive subject is an impossible concep- 
 tion. If a corporation is an organic and not an instru- 
 mental unit, the subject of the rights must be found in 
 
 l Cf. 221 ante.
 
 GIORGI'S THEORY 379 
 
 the fusion of individual wills, in a single general will. 
 Social man is possible to the extent that he admits of that 
 fusion. Both in the particular and general will is found 
 all human nature considered as the subject of ethics. It 
 is not true, therefore, that under the theory of the will 
 man takes the part of a "quid superfluum." 
 
 225. Giorgi' s Theory Criticized. In associations the 
 will is not separated from man in the true sense 
 of the word because it is derived from the founder 
 and conserves his character and continues his person- 
 ality in a particular form. In the act of associa- 
 tion there is a relation not belonging to the will 
 of the man, and this relation, become permanent, is 
 the base of that multifold personality which a man can 
 assume in the eyes of the law corresponding to the 
 plurality of the empirical ego admitted in psychology, 
 as we have said before. 1 The will of the founder is 
 an empirical ego, a derivative personality, more than a 
 mere transitory act of the mind. In law there is no 
 contradiction in the existence of various personalities 
 in a human individual, although there be but one sub- 
 stantial personality, as in psychology the formation 
 of various empirical consciousnesses does not include 
 the necessity of an original and primitive act of dis- 
 tinction between the ego and non-ego. With this 
 premise let us examine the theory of Giorgi, which 
 makes the subject of the rights of the association the 
 entire human community, the people as formed by the 
 State. To us it seems that his theory is not tenable, 
 because it has the same vice as the repudiated doctrine 
 of Ihering. Giorgi also confuses law with fact, because, 
 though associations are useful to society and their 
 institution of important social interest, it does not fol- 
 low that society should be their subject. The poor and 
 1 Cf. 220 ante.
 
 380 INCORPOREAL PERSONS 
 
 the sick get many advantages from charitable institu- 
 tions, and yet they are not owners of the endowments. 
 Logically from this premise every individual right in 
 the last analysis should belong to the State, because 
 from every right society gets some advantage. Every 
 individual right in a certain aspect is a social interest 
 and therefore should be given to the State; a "reductio 
 ad absurdum." 
 
 226. The Basis of the Criticism of Giorgi' s Theory. 
 Giorgi made the mistake of considering associations 
 only in regard to their object and in paying no atten- 
 tion to their origin and the right of those who founded 
 them. The error of his theory becomes luminous when 
 one tries to apply it to juridical persons which have a 
 purpose of markedly private interest. The fact that 
 the State has a right to authorize and destroy moral 
 entities on the ground of social order, does not 
 show that they are departments of the State and are 
 not separate from it. Giorgi confuses a division of 
 administrative control with the formation of a new 
 entity, as Bonelli observes in his work, "Di una Nuova 
 Teorica della Personalita Giuridica." Now to sub- 
 divide the administration and departments of associa- 
 tion into many branches, and to confer upon one part 
 juridical personality, are two different things. A private 
 individual divides his administration into many branches 
 with separate treasurers and agents. In such case, 
 however, there is not an equal number of juridical 
 persons. The juridical personality arises when the por- 
 tion of the "corpus" thus separated becomes juridically 
 independent of the rest, so that all the juristic relations 
 into which it enters concern it alone. The juridical 
 person is an autonomous unit entirely separate from any 
 other unit. As long as a department, Bonelli says, 
 destined for some public service, continues to be in the
 
 GIORGI'S THEORY 381 
 
 control of the State, no new personality appears, and 
 such division has an exclusively administrative value. 
 To make a department a juridical person signifies that 
 in regard to private law it no longer belongs to the State. 
 There must be a true and real change of owners made, 
 and the new relations will have the new and not the old 
 owner for their subject. Giorgi does not see that if 
 the old subject remains the new one cannot be born. 
 The existence of the old and the new subject at the 
 same time is impossible.
 
 382 METHODS OF ACQUIRING PROPERTY 
 
 CHAPTER IV 
 
 PROPERTY AND THE METHODS OF 
 ACQUIRING IT 
 
 PROPERTY AND ITS RATIONAL BASIS. DOCTRINES DEALING 
 WITH THIS BASIS. LIMITATIONS AND CONTROL OF PROPERTY. 
 ORIGINAL AND DERIVATIVE METHODS OF ACQUISITION. 
 
 227. Fundamental Bases of Rights of Property. 
 Man must attain his ultimate end, and therefore he 
 expands his activity and binds and subjects to himself 
 external things and makes agreements with other men 
 for the reciprocal preservation of necessary and useful 
 objects. From the expansion of his personal activity 
 are derived property and personal rights; the first 
 having to do with the relations between man and things 
 and referring mediately to other persons inasmuch as 
 they have a duty to respect these rights and sometimes 
 a power to limit them, the second dealing with the rela- 
 tions between man and man and acting only indirectly 
 on things, containing all obligations reducible to an agree- 
 ment or promise. This distinction of rights is not 
 opposed, as can be seen, to the principle that a person 
 is the conscious subject of a right. Furthermore, 
 the union of property and personal rights constitutes 
 the estate which is the total of the extrinsic material and 
 spiritual property created by a person for himself. 
 Property rights comprehend property and one's rights 
 over the possessions of others; personal rights are con- 
 cerned with obligations of an economic or financial 
 value. Whence it follows that the estate is composed
 
 THE GREATEST PROPERTY RIGHTS 383 
 
 of all these elements, some corporeal and some 
 incorporeal. 
 
 228. The Greatest Property Rights. Property is 
 the greatest right, the "plena potestas in re." It 
 is a general if not absolute power over objects, and 
 at least it comprehends the greatest number of rights, 
 including possession, acquisition, enjoyment, and dis- 
 position. Enjoyment implies the possession and use 
 of the fruits; disposition embraces transformation 
 and alienation. Fundamentally property is nothing 
 more or less than freedom applied to things, as 
 freedom in the last analysis can be reduced to self- 
 ownership. These two conceptions interpenetrate and 
 are convertible because property is the dress and 
 investiture of individuals and is as inviolable as the 
 person. Hegel says that a person has his external ex- 
 istence in property. Through property it comes about 
 that things have no other signification than to create 
 the reality or manifestation of free will. Trendelen- 
 burg looks upon property as a victory of mind over 
 matter, as the instrument of the person. Things, in 
 the power of man, become animated means for the 
 purposes which they may serve, and, ceasing to be 
 impersonal, represent the determination of will. In 
 property we extend the conception of an organ to 
 external things, and we feel ourselves in it, as in our 
 own members. Rosmini asserts that the common char- 
 acter of all property is due to the connection of an 
 object with the personal principle. The connection is 
 duplicate, both physical and moral. He further says 
 that the concrete connection has in the suitability of its 
 occupancy for the attainment of some end, and that the 
 moral connection is shown by the act of intellect by 
 which we conceive a thing as useful to us, free and such 
 as can be occupied, and by the act of will which
 
 384 METHODS OF ACQUIRING PROPERTY 
 
 attempts to take it juridically and sets in motion the 
 forces suitable to take and keep it. Concrete con- 
 nection comes from the nature of the subject, which 
 seeks its own good in things. Moral connection 
 comes from the nature of the object, which seems open 
 and free to occupancy. Concrete connection is the 
 material of the right ; the form lies in the moral connection 
 with the loss of which one loses the right itself, as the 
 jurisconsults have shown when they said "possessio 
 animo et corpore adquiritur." Rosmini, Trendelenburg, 
 Cousin, and Thiers all agree in admitting two kinds 
 of property, one natural and the other acquired. Man 
 has a primal property in his person and powers. 
 The "mine" here is primal and original property, the 
 root and model of all others. From it all the others are 
 derived, and are simple applications and developments 
 of it. Our body belongs to us only as the home and 
 instrument of our personality, and is our next most 
 closely connected property. Man has a second property, 
 less closely bound to his existence but not less legiti- 
 mate, in the products of his powers. 
 
 229. Philosophy of Property. Property is the 
 expression of a practical synthetic judgment a priori. 
 We know that Kant was the first to admit in theoreti- 
 cal philosophy the synthetic a priori judgment in which 
 the subject is an intuition or sensual element, and the 
 predicate is a category or an element pure, intelligible, 
 and original, not, therefore, a derivative of experience 
 or the outside world, but of the intrinsic activity of 
 the intellect or mind. It is not the unity of two 
 conceptions, but of an intuition and a category, and 
 makes the conception because the subject, a sensual 
 element, is transfigured and made intellectual in the 
 act of uniting with the predicate. A category is not 
 an innate idea immutable and in the mind from the
 
 THEORY OF GROT I US 385 
 
 first, but a method or function, and thus is the original 
 a priori element derived from the depths of the mind. 
 Now property expresses a practical synthetic judgment 
 a priori in as far as the thing or eudemonological term is 
 reduced to a personal predicate. "Meum," "teum," and 
 "suum" are predicates of this kind which show the ac- 
 tivity of the person and the substance of the will. A 
 person is original since it is not an external production 
 and does not come from without, but at the same time is 
 not at the beginning all that it should be, and is less 
 than its full conception. However, it attains this con- 
 ception through its energy, which develops in society. 
 And here we see that the act of appropriation of the mind 
 begins before the practical synthetic judgment a priori. 
 It shows in theoretical judgment because to judge is to 
 reduce the variety of objects presented to the unity of 
 knowledge. It is to know, comprehend, and cognize 
 what it feels, and to make it a property of the mind. The 
 act of appropriation and theoretical judgment has only 
 a cognitive value, while in a practical judgment it has 
 an ethical significance. 
 
 230. History of Property the Theory of Grotius. 
 Diverse are the opinions about the rational basis of 
 property. Grotius states that private property, succeed- 
 ing to the "communio bonorum primseva," descends from 
 the occupancy and partition of land. Occupancy presup- 
 poses a tacit agreement, and partition an express con- 
 tract. In his opinion private property is based upon the 
 consensus of the components of society. In the begin- 
 ing property was common to all the human species, and 
 later to a people or family. When through determinate 
 forces private ownership came into existence, there was 
 no division of the common possessions, and by general 
 consent each man kept what he had. The theory of 
 Grotius confuses the rational basis of property with its
 
 386 METHODS OF ACQUIRING PROPERTY 
 
 historical origin. The basis of the property right must 
 be an idea, a principle and not simply a fact, as occu- 
 pancy or partition. Express consent is a fact, and so 
 also is tacit consent. Locke, in his "Treatise on Civil 
 Government," the physiocrats, Adam Smith, and Stuart 
 Mill in "The Principles of Political Economy," and 
 many economists state that property rights owe their 
 origin to work. According to Locke (the originator of 
 this theory) every individual has originally the duty 
 and right to work, and, as a means for the fulfillment of 
 his duty and the exercise of his right, has the power 
 of occupancy. The theory of the English philosopher 
 makes property come into existence only after work 
 has been applied, yet bases it on work, as a right to 
 exercise suitable activity, and therefore gives rise to 
 property at the moment in which he uses such a right 
 through occupancy. But work understood in this sense 
 is as inviolable as personal activity with which it is 
 confused. In fact the true basis of property is the 
 person. If applied work is conceived as the cause of 
 private property, private property cannot be justified, 
 because we must show first that there is a right to 
 occupy things to make them the object of work. Work 
 is the method of acquisition, which demands a prior 
 justification of property. Hobbes, Montesquieu in 
 his "L'Esprit des Lois," Bentham, and Charles Comte 
 make positive law the base of property without bother- 
 ing themselves whether positive law, in its recognition of 
 private property, conforms or not to reason and justice. 
 231. Kant's Theory of Property. Kant thinks that 
 property cannot depend upon the isolated act of the 
 individual, such as occupancy or transformation. Prop- 
 erty lies not only in physical possession, but in intel- 
 lectual possession, because the "mine" by right is, 
 according to that philosopher, so inherent in me that
 
 KANT'S THEORY 387 
 
 its use by another without my consent harms me even 
 when I have not the physical possession of it. Every 
 external object can become somebody's ; otherwise things 
 would be of no use, and there would be an opposition 
 between the appetitive capacities of freewill and freedom, 
 determined by reason, which demands property. To con- 
 ceive of an object as under my power, not in the sense 
 of mere physical possession, demands intellectual posses- 
 sion. In general, juristic propositions, as "dictamina 
 rationis," are a priori in Kant's mind. The proposition 
 of an a priori right is analytical or explicative of the 
 physical possession, because he who takes something 
 from me restricts my freedom and violates a juristic 
 axiom, and then affects the rights of my person. 
 But the above proposition of the possibility of intel- 
 lectual possession, despite the want of physical deten- 
 tion, is synthetic, as the thing is not in my hands, 
 and is a priori in that it establishes the necessity of a 
 possession of right without possession. The right of in- 
 dividual possession lies in the original common property in 
 land, and in the a priori general will, allowing such com- 
 mon ownership. Land cannot be free by nature originally, 
 otherwise it would have in itself a quality which would 
 place it above all possession. Freedom of land could 
 only arise by agreement among those who had a right 
 to its service, and nevertheless forbade the use of it 
 among themselves, in which case the land would be 
 theirs. Prehistoric common possession cannot be the 
 notion of individual possession, otherwise free objects 
 would be free of themselves, and should be regarded as 
 "res nulius" by right, an absurd proposition. Kant 
 cannot conceive a "res nullius" in property, but supposes 
 that it must be "res communis." For common property 
 excludes individual property, as is noted by Tullio in 
 "II Diritto di Proprieta nella Dottrina di Kant." If
 
 388 METHODS OF ACQUIRING PROPERTY 
 
 I wish certain external things to be mine, it is necessary 
 that in the same act, I, of right, recognize the obligation 
 of all to respect private property. Such an obligation 
 is contained in the very conception of the right of 
 possession. The only will suitable to enforce this 
 obligation and to protect the "meum" and "teum" is the 
 general will of society. In a state of society possession 
 is not provisional as in the state of nature, but is per- 
 manent. The State itself, a product of reason, enforces 
 the relations into which men enter, but does not create 
 their necessity. A civil constitution, writes Kant, is 
 merely a law by which each one is assured of his 
 own. A State does not create or determine property. 
 Now all this theory, while it is based upon the principle 
 of individual personality and puts in evidence the 
 social element of property, is capable of being general- 
 ized where it touches the propositions about intellectual 
 possessions and of furnishing the philosophical reason 
 of private ownership, because the practical synthetic 
 judgment a priori is not the only proposition which 
 enunciates the possibility of intellectual possession, but 
 every proposition as well that is concerned with the 
 fundamentals of property, as we have said before. 
 
 232. Fichte's Theory of Property. Fichte con- 
 structs his doctrine with the elements of Kant's theo- 
 ries, but he exaggerates the significance of the social 
 element. He believes that it is necessary to distinguish 
 three kinds of contracts binding individuals together, 
 as Filomusi-Guelfi says in the "Enciclopedia Juridica." 
 These consist of the contract of property, the contract 
 of defense, and the contract of union. By the first 
 an individual possesses something, and demands that 
 others do not claim it, obliging them to respect his 
 possession so that he will respect theirs. By the second 
 each one promises to help the other defend his property,
 
 FICHTE'S THEORY 389 
 
 if the other promises to do the same for him. The 
 force of defense is established because individuals form 
 part of the State through an agreement of union which 
 guarantees the other two contracts. The individual has 
 an original right to be a causal unit in the objective 
 world, and therefore by the contract of property there 
 is assigned to him a portion as the sphere for his activi- 
 ties, provided that he respects the freedom of others and 
 promises the inviolability of their spheres of action. 
 Freedom and activity are not possible without life. 
 Freedom once guaranteed, life must be guaranteed; an 
 absolute and inalienable property of man is the right 
 to life. In that is found the ultimate object of the use 
 of things. When a man cannot live by his work, there 
 is not left to him anything which is really his, and the 
 contract as regards him is void. Everyone must give 
 conditions of life to those who lack them if he wishes to 
 be helped in turn; whence, eleemosynary institutions. 
 In the above theory ownership is identified with the 
 personal principle, but the conceptions of contract and of 
 the right to life and work, place an intrinsic limit on this 
 same ownership, which is the logical premise of socialism. 
 This premise is that every man has an inherent right 
 to a part of the external world as his property; that 
 there is a natural right of property which the State 
 should recognize and protect. It is only necessary to 
 be a man to have this right as sacred and inviolable as 
 freedom or personality. It is the State's duty to put 
 each one in possession of the property to which his need 
 and capacity give him a right. To the doctrine of 
 Fichte, and to the principle now stated, Laveleye agrees 
 in his book, "De la Propriete et ses Formes Primitives." 
 We must observe that Fichte and Laveleye confuse two 
 very diverse conceptions, the conception of guaranty that 
 the State should give to the development of the equal
 
 390 METHODS OF ACQUIRING PROPERTY 
 
 capacity of all towards ownership, and that of the duty 
 imposed upon the State of procuring property for every 
 individual. We cannot doubt that every man, as such, 
 has an essential right to exercise his activity over objects 
 within his sphere by the use of means necessary for the 
 attainment of his purposes. The State should give each 
 man conditions suitable to carry out that right or tend- 
 ency towards acquisition eliminating possible obstacles, 
 and, in fact, aiding him. But since an individual has 
 initiative power he should act himself, carrying out the 
 series of particular acts by which the things may become 
 his. His inherent right or theoretical power of property 
 should take the form of an acquired right or practical 
 power. The first is an abstract power without the 
 second, referring more to the essence than the individual- 
 ity of man. It is the simple right that all have to prop- 
 erty. The second is a concrete and individual power, 
 and is the true property right which looks to acquisition. 
 The acquisition of property in the concrete is for the 
 individual and not for the State, which is called upon 
 to recognize, guarantee, and to protect the activity of 
 the citizens, but not to substitute its actions for theirs. 
 The State must hold safe the principle of formal or 
 juristic equality, but since it owes the greatest respect 
 to human liberty, which develops with the indefinite 
 quantity of various original and acquired powers, it 
 cannot decree material equality. 
 
 233. Property a Right of Man in the Abstract. 
 The individual is a part of society and should be 
 limited in his control of material objects. Individual 
 rights presuppose always an ethical whole, in which 
 there are conditions of development, protection, and 
 control. The individual derives the stability of will 
 over concrete objects from the ethical whole, that is, 
 from the laws governing the disposition of property.
 
 PROPERTY A RIGHT OF MAN 391 
 
 Trendelenburg notes that the right to property belongs 
 to man in the abstract, who confirms and limits it. 
 The doctrine of Kant about the two kinds of possession 
 began to affirm speculatively the necessity of a criticism 
 of the other doctrines, which based property upon the 
 isolated act of the individual. Vico has clearly seen that 
 control is the very law of the existence of private prop- 
 erty, as Cocchia shows in his book, "I Limiti della Prop- 
 rieta." He distinguished the occasion of private owner- 
 ship, that is, the motive of its historical appearance, 
 from its cause or rational basis. Private property, like 
 freedom, has its base in human nature itself. In owner- 
 ship there are, according to the Neapolitan philosopher, 
 the "cupiditas" or interweaving of egoistical senses, and 
 the "vis veri," the "ratio," the ethical law. Ownership 
 is "prudens utilitatum destinatio, hoc est destinatio facta 
 ratione non cupiditate suadente, gignit dominium." In 
 other words, in regulating ownership we must be guided 
 not only by what is useful for the individual, but by the 
 community's needs as well, following the dictates of 
 civil prudence. Vico said that there is a civil control, 
 which is exercised over the possessions of the citizens, 
 superior to every private right. This control is the 
 limiting social reason, and not eminent domain, which 
 makes the State the owner of all property. Romagnosi 
 speaks of a natural ownership, distinguishing it from 
 one purely civil, but using the words in an entirely 
 different sense. Natural ownership is synonymous with 
 an absolutely egoistical use and would be possible in 
 a state of nature, while civil ownership is had in a 
 society, and necessitates the tempering of an individual's 
 right with necessity and social utility. In a state of 
 nature powers are always controlled, and the legislator 
 should observe that law, based on real relations. .If 
 the legislator place a limitation on private rights he
 
 392 METHODS OF ACQUIRING PROPERTY 
 
 does not order a sacrifice, because such limitation is 
 necessary to the attainment of security and other 
 benefits which the individual obtains from society. 
 The chief requirement of positive law is that it equalizes 
 between individuals their power to be useful to them- 
 selves through equality and security of common free- 
 dom. The tempering of their egoistic freedom 
 harmonizes; does not weaken, but reenforces; does not 
 take away the powers of private use, but rather makes 
 it greater and surer. Whoever obeys the laws of the 
 community obeys necessity and himself; whence it 
 follows that this control does not lessen individual 
 ownership, and that natural control is not changed, 
 but subdued. Rosmini expresses the same theory 
 when he distinguishes between property and the right 
 of property. Considering only the relations between 
 persons and things, property can be conceived of in an 
 unlimited way, but looking upon property as a right, it 
 should be subordinate to practical justice; and so a man 
 can be forced to give up something of little or no use 
 to himself, which is harmful to others, or an obstacle 
 to their welfare. 
 
 234. Code Definitions of Property Considered. The 
 definition of property given by the French and Italian 
 Codes recognizes in so many words the conception 
 of control and limitation. Property, according to 
 these codes, is the right to enjoy and use things in the 
 most absolute way as long as you do not make a use of 
 them forbidden by the laws or ordinances. Rosmini 
 finds the limitation in the last part of the definition. 
 What is the object of laws and ordinances, he says, 
 if they do not forbid individuals making use of their 
 property in a way injurious to others or the Common- 
 wealth? Do they not thus show that they have no right 
 to use their property so? The legislatures in fact do
 
 CODE DEFINITIONS 393 
 
 show that there is a feeling that property, as a right, has 
 limitations, even if they do not state this categorically. 
 Perhaps it would have been better if the conception of 
 limitation had been expressed in the definition so that 
 the idea of absolute enjoyment and disposition could 
 not be reconciled with the prohibition of certain uses, 
 and if it had not been necessary to emphasize the notion 
 of property as a general power given over inanimate 
 objects; but we must remember that the French legis- 
 lature had in view the making of a solemn proclamation 
 of the individual rights of property to supplant the then 
 doctrines, that such rights lay in positive law. 
 Examples of limitations are condemnations for public 
 use, legal servitudes, and forced cooperation. By con- 
 demnation the owner is forced to give his property to 
 society but receives reimbursement. Without con- 
 demnation for public use, observes Rossi, there would 
 not be any improvements, streets, canals, harbors, 
 or monuments. There would also be no means of 
 gaining profit in many countries from the generous 
 treasures of nature or of getting the precious metals to the 
 industrial and commercial world. Condemnation often 
 increases the value of property, as in the case of the 
 construction of a railroad. If the railroad were not 
 built the land and houses near the appropriated land 
 would suffer, not getting the value which they acquire 
 from the railroad. Servitudes established by law look 
 to a double end, both to public and private benefit. 
 Military service is of the first kind ; forced concession 
 of water to lands that can profit by it, ways of neces- 
 sity, aqueducts, and party-walls are servitudes of 
 the second class. Obligatory cooperation is certainly 
 an important limitation of property, in which the 
 subordination of private property to public use is 
 allowed and enforced. By condemnation the private
 
 394 METHODS OF ACQUIRING PROPERTY 
 
 property is ceded to the State, which puts it to a use 
 that the citizen could not; by servitudes the State 
 forces the owner to let it make use of his property. 
 
 235. Necessary Restrictions on Property. The 
 theory of the necessary restrictions on property, about 
 which Lomonaco has recently written in a mono- 
 graph, "I Temperamenti della Proprieta Prediale," is 
 a contradiction given by the legislature to optimism 
 and settled harmony of the economic school. The simple 
 and normal compatibility of private interest and pub- 
 lic use, presupposed by Adam Smith, Malthus, Ricardo, 
 Say, and Rossi, is transformed by the work of Bastiat 
 into an irresistible harmony. An individual, Bastiat 
 says, finds in selfish interests the stimuli to action, but 
 at the same time is subject to a providential law forcing 
 him to work for the good of all, while he works freely 
 for himself. There is no doubt that a man can err 
 and violate the law, but it is none the less true that 
 sorrow follows error, pain follows vice, and punish- 
 ment follows wrong. From this it is plain that 
 discord is accidental and transitory and harmony es- 
 sential and permanent. The free course of nature is 
 not impeded; it gives human power free scope for 
 expansion, and thus we have the higher orders. The 
 State intervenes when the use of force is legitimate, 
 that is, if a right is trampled under foot, but for 
 the most part it recognizes the fullest freedom. But 
 this immutable and universal harmony, imagined by 
 Bastiat, does not exist in the physical world, because the 
 cosmic system is always altered and modified by perturb- 
 ing forces, which affect the flora, fauna, seas, and conti- 
 nents. Harmony, in Bastiat's mind, is the social order 
 or human welfare that develops into acts without the 
 intervention of the State, which need not take part, 
 and without true individual freedom, on which he
 
 INHERENT RIGHTS 395 
 
 so much insists, for it cannot in any way hinder the 
 development of the harmony. Certainly there is no free- 
 dom here in its real sense since he pays no attention 
 to the effect of stubbornness, obstinacy, and wronghead- 
 edness in ethical relations (for example, in economics). 
 And at the same time he asserts that the certain conse- 
 quences of error, vice, and wrong are sorrow, pain, and 
 punishment. That is contradicted by experience which 
 teaches that an individual following his interest, even 
 if he does not know or cognize it, is led spontaneously 
 to the point of coincidence of his good and the general 
 welfare. To Cairns, and before him to Minghetti, we 
 owe a just and clear criticism of the optimism of Bastiat. 
 236. Equality of Inherent Rights Gives no Right to 
 Equal Property. Man has an inherent right to use 
 his activity over external things for the attainment 
 of his objects. But a belief in this conception does 
 not indicate a title to property common to all men 
 whose inherent rights are equal. A particular fact 
 intervenes, which takes away the abstract similarity 
 and gives birth to a juristic power over the things; 
 acquired property makes its appearance. Now this 
 concrete fact is acquisition, in which we can distin- 
 guish four grades or four successive rights according 
 to the analysis of Rosmini. There comes first, as cause 
 and origin of all other rights, a natural right, which is 
 the right to legitimate action which does not violate 
 another's property. This right when exercised pro- 
 duces the same action that, fulfilled, becomes something 
 adherent to us, a part of us and our right as long as it 
 lasts. If the action be such that it can bind an external 
 object to ourselves while we enjoy the right of action, 
 we enjoy as well the right of joining to us an external 
 thing and of making it our own. The action completed, 
 we have joined something to ourselves and have ampli-
 
 396 METHODS OF ACQUIRING PROPERTY 
 
 fied our power to work, and the right of all these actions 
 is ours. The methods of acquisition are partly original 
 and partly derivative; the first do not demand the agree- 
 ment of the will of others, the second presuppose it. 
 The original rights are appropriation, accession, confu- 
 sion, and prescription; the derivatives are agreement 
 and inheritance. 
 
 237. Appropriation. Appropriation is the taking 
 possession of a vacant external object with the intention, 
 recognizable by others, of having its exclusive use. 
 There are three requisites, a thing which can be 
 possessed, the taking of possession, and the sign of 
 such taking recognizable by others. The thing must 
 be subject to appropriation, must be external, other- 
 wise it is not an object of acquired property, to which 
 appropriation refers, but is the subject of natural prop- 
 erty. It must be susceptible to the physical acts 
 necessary for the physico-moral bond to realize the 
 idea of property or of the union of the thing and the 
 person. It must be free, because appropriation cannot be 
 subversive of the rights of others. The taking of posses- 
 sion is composed of the moral act or will to have and to 
 keep the object, and the physical or the subjection of 
 it to the power of the person. If the first is lacking 
 there is simple detention; if the latter is lacking there 
 is a mere intent. The token shows to men that the object 
 is part of our estate. We cannot say that the right to 
 property is formed when other men do not know what 
 is taken and what not. We must always distinguish 
 the token from the physical link; the former only pre- 
 supposes the existence of the latter, as a token always 
 presupposes the thing itself. There are four means of 
 appropriation, simple occupancy, hunting, fishing, and 
 finding, which in their turn comprehend three condi- 
 tions, that of an object unacquired, of a "res pro dere-
 
 ACCESSION 397 
 
 licto,"and of things lost, found, and not reclaimed within 
 the time established by the statutes, after suitable means 
 of publication have been used. Appropriation is bounded 
 by limits both of juristic and physical rules. The limits 
 of the juristic order are fixed by quality and quantity. 
 Qualitatively, of course, appropriation cannot extend to 
 those things which, being immense and inexhaustible, 
 are in negative union only with mankind, although a rela- 
 tive small portion of them can be occupied. It is limited 
 quantitatively because we cannot exercise our activity 
 on whatever free things we believe suitable to the attain- 
 ment of our ends to the point where our acquisition 
 becomes destructive or harmful to another personality. 
 The limits depending upon the physical order are such 
 that man can occupy all those things which he can 
 reduce to his power in such a manner that others may 
 know of his right to them. 
 
 238. Accession. Accession is a special method of 
 acquisition and denotes the act by which an object losing 
 its individuality is united and incorporated in our prop- 
 erty without being transformed or confused with it. With 
 this understood, the acquisition of the property in fruits 
 and in the young of animals can be seen not to be an 
 example of accession, since their existence is begun with 
 separation, which is Opposed to accession, which con- 
 sists of union and incorporation. In this case, as in 
 others similar to it, there is the exercise of the right of 
 property, and the increase is governed by the "jure 
 domini." Neither does specification, confusion, and mix- 
 ture enter into the sphere of accession because in that 
 case there are not objects which transform and unite. 
 On this point the Austrian and Italian Codes have 
 followed a rational conception departing from Roman 
 law and the French Code in their recognition of acces- 
 sion as a simple development of property, and in their
 
 398 METHODS OF ACQUIRING PROPERTY 
 
 extension of its bounds to comprehend the acquisition 
 of nature's increase, specification, confusion, and mix- 
 ture. Accession is caused either by nature or by the 
 act of man. There are examples of accession by nature 
 in alluvium, in "avulsium," in "alveus relictus," in the 
 "insula in flumine nata;" of accession by the act of man 
 in "insedeficatio," "plantatio" and "satio," "scriptura," 
 "pictura" and all other forms of "adjunctio." A kind of 
 mixed accession is also sometimes spoken of, which is 
 brought about by nature and art together. This is proved 
 by the example of agriculture. But we must take care 
 that in artificial accession we do not lose sight of the 
 element or forces of nature, as we need the latter in many 
 kinds of productions. From this it follows that the 
 examples of mixed accession, that is, "satio" and "plan- 
 tatio," belong to artificial accession or that derived from 
 the act of man. 
 
 239. Alteration. Invention and prescription are 
 the other two original methods. Alteration is an act 
 by which a thing is transformed in such a manner 
 as to make it "nova species." To some it seems 
 existence depends upon form, and the "nova species" 
 therefore should be attributed to him who has pro- 
 duced it, while to others it seems that the material 
 was more necessary and the "nova species" should 
 belong to its owner. The jurisconsults' "eriscundi" dis- 
 tinguish two cases; if the new species could be reduced 
 to its primitive form it should belong to the owner of 
 the material; if the new thing could not be reduced it 
 must belong to him who made it, upon payment by 
 the owner of the price of the material. Modern legisla- 
 tion, believing in the reality of work and the principles 
 of equity, enacts that if a person has taken material 
 that does not belong to him to form something new 
 whether the material can or cannot be returned to its
 
 PRESCRIPTION 399 
 
 original form, the owner of the material has the right 
 to the thing formed from it reimbursing the laborer for 
 his work. When, however, the work has been such as 
 to greatly increase the value of the material taken, the 
 labor expended is considered as of more value, and the 
 worker has the right to retain the thing upon which he 
 has worked, paying to the owner of the material the 
 price thereof. 
 
 240. Prescription. Prescription is not an infamous 
 power created by positive law to decrease litigation, but is 
 an institution conforming to reason, because in property 
 there should be action of the person, and failure to act 
 for a long time entails the extinction of the public recog- 
 nition which binds the person and thing. Now recog- 
 nition and connection diminish for the old owner as 
 they develop, strengthen, and increase for the possessor. 
 The conception of necessity of the will of the person 
 therefore, active or visible in some manner in the object 
 is the true foundation of prescription. Prescription is 
 the method of acquisition "sui generis," yet not abso- 
 lutely independent, because it serves to supplement 
 a bad title or the lack of title on the part of the possessor. 
 
 241. Derivative Methods of Acquiring Property; 
 Agreement and Inheritance. The derivative methods are 
 agreement and inheritance; contract is the accord of 
 two or more wills over a juridical object of economic 
 value. In agreement the essential by which property 
 changes hands is consent, which is the meeting of the 
 minds of the parties. The Roman law demanded 
 "traditio" for such a change, but modern law re- 
 quires fewer physical conditions, as expressed by the 
 phrase, "consensus parit proprietaten." The principle 
 is just because the real cause of the transfer does not 
 lie in the material act of delivery, which is the token, but 
 in the "consensus in idem placitum." In the interest of
 
 400 METHODS OF ACQUIRING PROPERTY 
 
 the third parties, however, to whom it is of great impor- 
 tance to know changes of title, it has been established 
 that title passes by writing. Inheritance is administra- 
 tive and testamentary; in respect to extent total in 
 administration, and partial in testamentary descent. 
 
 242. Difference between the Philosophy and the 
 Law of Property. In the "modus acquirendi" we find 
 immediately the "titulus" of the positive law, and 
 mediately that of the rational law. In the eyes of 
 the lawyer legality of title lies only in contract, will, 
 prescription, and occupancy; that is, the methods of 
 acquisition which are right recognized by law as the 
 source of the right. The philosopher wishes to search 
 out the inherent right, considering the facts and recog- 
 nizing the title on them, and then the "modus acqui- 
 rendi" in the method. The "modus acquirendi" is the 
 term between the inherent and acquired right. A lawyer 
 must prove the act which is the acquired right with its 
 approximate cause which is the method of acquisition ; 
 the philosopher wishes to go further and to find the ulti- 
 mate cause that is part of the person and is natural 
 rights.
 
 ACQUISITION AN INSTINCT 401 
 
 CHAPTER V 
 
 THE HISTORY OF PROPERTY AND OF 
 METHODS OF ITS ACQUISITION 
 
 THE ACQUISITIVE ACTIVITY OF ANIMALS AND MAN. THE 
 HISTORY OF PROPERTY AND THE HISTORY OF PERSONALITY. 
 COLLECTIVE PROPERTY. THE FAMILY COMMUNITY. CHRIS- 
 TIANITY AND THE WORTH OF THE INDIVIDUAL. FEUDALISM. 
 
 THE REFORMATION AND NATURAL LAW. COMPLETE INDI- 
 VIDUALIZATION. AND THE CONTROL OF PRIVATE PROPERTY. 
 
 THE METHODS OF PRIMITIVE ACQUISITION. THE DIVISION 
 OF PROPERTY. PRESCRIPTION. EQUITY, AND CIVIL PROCEDURE. 
 
 243. Tendency to Acquisition an Instinct. Aris- 
 totle speaks of the natural KT^^ that is, of the spon- 
 taneous activity, which looks to the procuring of nourish- 
 ment, common alike to animals and man, and which seeks 
 the things necessary and useful to the existence of the 
 individual and the social body. An abundance of such 
 things, according totheStagirite, constitutes wealth, and 
 therefore his "Ctetics" are part of his "Economics," 
 which are based on the science of life. The human activ- 
 ity, which looks to the procuring of food, is a development 
 of the same property in animals but it is determined dif- 
 ferently by the complexes of his qualities, which distin- 
 guish the human species from all others. There is no doubt 
 of such a development if mind itself presupposes, com- 
 prehends, and is superior to nature; if thought lies 
 apart from sensibility and reason, contains and raises 
 sense as well as thought, making the development and 
 grasp of mind more perfect. The analogy between phy-
 
 402 HISTORY OF PROPERTY 
 
 siology and economics, so much in vogue to-day, is true 
 if we understand it in its wide sense, because economics, 
 the science of things destined to the satisfaction of 
 necessities, contain the theory of social vegetation. 
 Carried to an extreme it leads to a grave error, since eco- 
 nomics on the one hand enter into social statics (very 
 near the animal kingdom) and, on the other, the same 
 statics receive an impulse from dynamics which depend 
 upon the elements of the highest forces of human nature 
 and include historical development. The economic activ- 
 ity of man cannot be separated from thought and free 
 will since no entity can act independently of its nature. 
 The consequence is that economic laws are not absolutely 
 the equal of philosophical laws because they do not de- 
 pend, as the latter, upon thought and will. 
 
 244. Property an Attribute of Man. In the eco- 
 nomic functions of animals there are two coordinate 
 actions, the moving or transforming of the material, 
 and the action or movement of the special organs which 
 perform the above operation and tend to effect the pur- 
 pose. This coordination gives evidence of the presence 
 of an ultimate end and is the clearest proof of the 
 necessity of teleology, not abstract and transcendental 
 but concrete and objective. The difference between an 
 organism and a mechanism lies properly in this : that in 
 the organism the end is ever present, and is brought 
 about by activity; in the mechanism it is extrinsic. In 
 this coordination of two actions, however, the perfecting 
 influences of a well-developed mental energy are lacking 
 in animals, as well as the constant volitive variations 
 of methods ; so that an animal is not an efficient worker 
 nor can he increase the complexity or specialization of 
 his labor by adapting himself always to more convenient 
 and progressive methods. An animal ceases to advance 
 at some stage of economic life because its organism
 
 THE RIGHT OF PROPERTY 403 
 
 (especially in relation to psychic activity) does not allow 
 it to pass the bounds within which its acquisitive func- 
 tions are confined by nature. In animals such functions 
 are always limited to the sphere of instinct and the 
 mechanical associations of desire and satisfaction, and 
 lead to the temporary possession of the object; in man 
 mind, which desires everything, and the principle of its 
 autonomy control such functions, and they make for 
 ownership and property. Only mind can dominate 
 nature and comprehend it in theory and practice. This 
 is an attribute of man alone. No one has yet dared to 
 say that individuality furnished with sensibility and 
 spontaneous motion, that is, sensibility in motion, can 
 be the equal of the individuality capable of enunciating 
 the duo-syllabic ego, which is the sign of the separation 
 of man and brute. An animal can join itself to an 
 object by a physical bond and can grieve for it if he 
 is deprived of it, but he is not able to create the moral 
 bond, which distinguishes property from possession. 
 
 245. The Right of Property Subject to Evolution. 
 The history of property is in the last analysis the his- 
 tory of human nature, because property is freedom 
 applied to things, as freedom is nothing but ownership 
 of self. Wheresoever one is found there is the other; 
 and where ownership is violated, there personality is 
 violated and vice versa. In all manifestations of human 
 activity progress (as in the case of the universal evolu- 
 tion of entities) is the divergence from the simple to the 
 complex, from formless homogeneity to varied hetero- 
 geneity, accompanied by the greatest similarity and 
 profoundest correlations of parts and by a constantly 
 increasing perfection of attributes. The ancient philoso- 
 phers expressed this conception by saying that from 
 the one and from the whole, before the existence 
 of any sub-divisions of the great unit, there came a
 
 404 HISTORY OF PROPERTY 
 
 division and separation of the parts, which tend to 
 develop into one distinct and concrete unit or whole 
 developed to its fullness, an harmonic synthesis very 
 different from the original and embryonic synthesis. 
 At first the human community was one in which the 
 individual was only a part and instrument, then he 
 developed concrete individuality, trying to free himself 
 from society, and tends to reach a rational harmony 
 between his particular determination and the social. 
 
 246. Origin and Development of Property. Prop- 
 erty goes through the same phases; being at first collect- 
 ive, it becomes individual and egoistic, and finally tends 
 to take its place in society and the State. In the 
 primitive and infantile development of law it is not 
 possible to distinguish a "jus personarum" from a "jus 
 rerum" because the childlike mind, confusing and not 
 distinguishing, established rules substantially identical 
 for both. The distinction began in the days of Rome, 
 in which a notable development of juristical thought 
 took place. Maine, in "Ancient Law," criticizes the 
 doctrine which recognizes individual occupancy as the 
 method by which the "res nullius" of the primitive world 
 became private property in the historical world. This 
 criticism is well founded. He gives two reasons for not 
 believing in the doctrine which was then generally 
 acknowledged. In the first place, individual appropria- 
 tion presupposes the very fact of property and the 
 extension of it to a great number of useful objects. 
 For it is clear that, when possession is taken of a "res 
 nullius" (a thing which has no owner), society allows 
 the possessor to become its owner because it presumes 
 that everything useful should be in the exclusive posses- 
 sion of somebody and should be of use to its possessor, 
 who has the right of property over it. In the second 
 place, individual appropriation is a fact essentially
 
 ORIGIN OF PROPERTY 405 
 
 dependent on the will and action of an individual. 
 And it is shown that primitive law is based on the com- 
 munity and not on the individual. This is proved by 
 the fact that at first we find collective property ac- 
 quired by appropriation in mass and not individual 
 property. The collective property of our remote an- 
 cestors is not the effect of a sense of justice or an in- 
 stinctive affirmation of the natural rights of man and 
 the conception of equality, as Laveleye pretends in 
 his work "De la Propriete et ses Formes Primitive." 1 
 It is the consequence of two necessities (Belot notes 
 this, too, in dealing with the same subject), one a 
 natural development, the other a product of the social 
 state. In primitive times the greatest part of the 
 earth's surface was neither cultivated nor cultivatable by 
 the then imperfect methods of farming. The number 
 of inhabitants, therefore, in a given district, could not 
 be great. The division of such land which had no value 
 was useless; and, furthermore, to cultivate it in separate 
 lots was impossible. The only purpose to which it 
 could be put was that of a common pasture. The first 
 divisions were made later by the agrarian communities. 
 These were the offspring of economic thought existing 
 as they did at great cost and labor in the cultivation of 
 arid lands. The land was assigned every year by lot, 
 because of the necessity (when the science of fertiliza- 
 tion was unknown) of letting the part which had been 
 cultivated over lie fallow for several years, so the annual 
 distribution of shares by lot was not unjust because all 
 the land was of the same value. The state of society 
 demanded the adoption of such a regime at that time 
 for common defense, because they were forced to form 
 groups to preserve themselves from destruction. The 
 history of the colony of Nantucket (a sandy island of 
 1 Cf. 232 ante.
 
 406 HISTORY OF PROPERTY 
 
 North America inhabited since 1671 by members of a 
 small dissenting church persecuted by the Puritans of 
 Massachusetts), where the system of the agrarian com- 
 munities has been the rule, shows the physical and eco- 
 nomic situation which produced such a regime. Their 
 history teaches us that the cause of collective property 
 is not the sentiment of justice, but the impossibility of 
 permanent allotment of lands of little value which 
 cannot yield consecutive harvests in any other way that 
 necessitates such a regime. 
 
 247. Property in Greece. It can no longer be 
 doubted that in India, before the system of caste, prop- 
 erty was collective. God gave the land to men for their 
 enjoyment simply. They had no existence apart from 
 the life of the tribe or family. When caste was in- 
 troduced, the Brahmans considered that God had given 
 the land, which they allowed others to use. Among 
 the Hebrews the earth was the Lord's and men were 
 strangers on it, to whom He gave it as to tenants. 
 Moses allotted the land in perpetuity to certain groups. 
 Alienation could only be temporary. The debts of the 
 Israelites were remitted every seven years, and every 
 forty years property gone out of the tribe or family 
 must gratuitously be returned to its ancient division. 
 According to Heinnecius in "Elementa Juris Naturae 
 et Gentium," Puchta in "Cursus des Institutionen," 
 Mommsen in his "Romische Geschichte," and even 
 according to Laveleye in the book we have cited, 1 and 
 Viollet in his study of primitive property, the ancient 
 people of Greece and Italy also passed through the stage 
 of communism. To sustain the opinion of Mommsen 
 we can cite among the Germans Niebhur, Arnold, and 
 Bachofen, and in Italy Pantaleoni and Burtagnolli. 
 Lange, in his "Handbuch der Romischen Altertiimer," 
 
 l Cf. "De la Proprieteetses Formes Primitive," cit. 232 and 246 ante.
 
 STATE OWNERSHIP OF LAND 407 
 
 and Fustel de Coulanges, in his "La Citi Antique," are 
 to the contrary. 
 
 248. State Ownership of Land in Greece. In Greece 
 land was considered the property of the State, the 
 citizens having an interest subordinate to the general 
 right; and from this conception came the frequent di- 
 visions of land and the constant legal interference with 
 property. Laveleye shows that Sparta at the time 
 when she appeared in history had already come out 
 of the regime of primitive communism and had probably 
 reached that of collective control of the "gens." The 
 constitutional element of society was the y^os, a kind 
 of group of families reunited by the tradition of a com- 
 mon origin, together with an inalienable estate. Sparta 
 possessed a vast domain including forests and mountains, 
 whose rent paid for the public banquets. Plutarch, 
 in his life of Lycurgus, says that at the birth of every 
 child the elders of the tribe assigned him one of the 
 nine hundred lots belonging to the city, representing the 
 common land which was the family estate. The sale 
 of land was forbidden; its bequest prohibited. Cus- 
 tom permitted a citizen to use the horses, dogs, and 
 utensils of any man who did not wish to use them. In 
 Athens Solon placed property under heavy limitations, 
 probably the vestiges of primitive communism. He 
 enacted that the sale of a property entailed the loss 
 of citizenship. He imposed a progressive tax. The 
 State treasury gave a dowry to poor girls and furnished 
 grain to the needy and paid the expenses of the senators. 
 . 249. Property in Rome. In Rome the earliest pri- 
 vate property was personal and not real, probably con- 
 sisting of slaves and cattle. The ancient "mancipatio," 
 the general form of sale, applied primarily to things 
 which the vendee could take in his hands. Land was 
 common, called "ager publicus." It became greatly
 
 408 HISTORY OF PROPERTY 
 
 increased by successive conquests. The farmstead of 
 remoter days ("heredium") was little more than the en- 
 closure of the Germans, containing about an acre. With 
 the Romans as with the Greeks, the ass and the ox were 
 mediums of exchange and units of value. Now it is 
 not possible to admit that while the land was individ- 
 ual property cattle were a means of exchange, because 
 the wherewithal to feed them could not be found. If 
 the ox and the ass were receivable in payment, the 
 greater part of the land must have been common pas- 
 turage. There was, however, in Italy and Greece, a 
 tradition of a Golden Age in which private property was 
 not thought of. As it agrees with the economic history 
 of humanity, this tradition should not be considered 
 mere poetic fiction. Diodorus Siculus narrates that the 
 Greeks of the Liparus lived with common property 
 in the land. Aristotle wrote that there remained some 
 trace of ancient communism of land in Tarentum even 
 in his day. Porphyry and Jamblichus (in writing the 
 life of Pythagoras), say that in Magna Grsecia there 
 were two thousand people who established a political 
 state under the Pythagorian regime of the community 
 of wealth. Trusting to the statement of Porphyry, it 
 seems possible to conclude that some of the Italian 
 cities of the Middle Ages arose in like manner. Is it 
 not possible that with the name and exploits of Pytha- 
 goras there were mixed some historical traditions of the 
 community of wealth in Magna Graecia? Another argu- 
 ment can be based on the many institutions of public 
 banquets scattered throughout Italy and Greece, and 
 on the constant allusions of ancient writers to an 
 ancient division of land and on the necessity of the 
 consent of the whole social body for the sale of land to 
 a foreigner, a consent necessary in Turin and Greece. 
 As to Rome this necessity took the general form of the
 
 COMMON OWNERSHIP OF LAND 409 
 
 "cessio in jure," full testimony of the absolute owner- 
 ship of the State. Lastly the primitive prohibition on 
 the alienation of land (certainly introduced from Greek 
 law, and probably from Italian custom), the absence of 
 testamentary power at the time of which we speak, and 
 later the exclusion of women from the inheritance 
 (because upon marrying they would have transferred 
 part of their property to another family) constitute 
 new evidence to confirm the opinions of Mommsen 
 and the others. 
 
 250. Common Ownership of Land Exists in Many 
 Countries. In some provinces of India, about the fourth 
 century before Christ, the land was cultivated in com- 
 mon with a division of the fruits at harvest. To-day the 
 Indian villages still possess as undivided property in the 
 forests and uncultivated land; the arable land is no 
 longer common. In China there were, in primitive times, 
 communities which assigned a convenient part of the 
 land, but the remainder was entrusted to those who 
 could cultivate it. But about two and a half centuries 
 before Christ, the families of the cultivators divided 
 the arable land among themselves according to the num- 
 ber of noses; a tenth part was cultivated for the profit 
 of the State. To-day the emperor is the principal land- 
 owner of the Empire. Diodorus speaks of an agrarian 
 community living on the coast of Arabia who rewarded 
 their members according to the merits of each, assigning 
 to the better farmer the greater part of the harvest. 
 Among the Germans there was the "mark," or common 
 territory of the clan, of which a small extent was the 
 object of private occupancy during the year. But the 
 hereditary property included only the house and its 
 enclosure. Analogous to the "mark" is the " bland -el- 
 djemaa" of the Arabs. The Gauls had separate farms 
 and individual estates, assigned each year, however, by
 
 410 HISTORY OF PROPERTY 
 
 the magistrates among the clans or family living together. 
 In Egypt, in the time of Pharaoh, the land belonged to 
 the sovereign. The Mussulman laws have preserved the 
 same principle. Among the aborigines of America the 
 same system of collective property prevailed. 
 
 251. Examples Still Extant of Primitive Property 
 among Uncivilized People. There are still some ex- 
 amples of primitive property among uncivilized people 
 which serve to make us better understand it, because 
 one of the qualities of our mind is, as Vico says, that 
 men cannot obtain a full idea of distant and but 
 slightly known things, yet present and known examples 
 will make the object clearer. In Russia the land does 
 not belong to the crown or to the nobles, but is the 
 undivided property of the community or "mir." The 
 community is the owner of the soil and the individ- 
 uals have only the temporary use of it. There is no 
 private ownerhsip of land except the ground upon which 
 the house is built and the garden annexed to it. 
 These are hereditary. They divide the land among 
 themselves, coming together in an assembly for the 
 purpose. In Java the owner of the soil is God, and 
 consequently his representative upon earth, or the sover- 
 eign, the "dessa" or community, has the use of the soil 
 and distributes it yearly among its members. Private 
 and hereditary property in Java extends to the house 
 and enclosure, as among the Romans, Germans, and 
 Russians. In the Island of Pelew the individual is 
 the owner of his personalty, of his house and boat; 
 the king is the owner of the land and gives its use to 
 his subjects. In the Caroline Islands there is a regime 
 of relative community. Land in central Africa belongs 
 to the community or the head who represents it. 
 Among the native Americans, the land intended for 
 hunting and fishing belongs to the tribe. In Peru prop-
 
 ANCIENT EUROPE 411 
 
 erty is governed by a system of patriarchical and 
 authoritative communism. In Mexico there was a feudal 
 regime founded on the ultimate ownership of the 
 emperor. Cattle are more or less common property 
 among the nomadic pastoral Mongols. And habits of 
 communism are extensive and deep-rooted among the 
 Tartar tribes in Mongolian Asia. The system of com- 
 munism is still in full force among the aboriginal tribes 
 of India. In certain provinces of Spain, Altmarck, in 
 all ancient Scandinavia, Denmark, and Jutland, among 
 the ancient Bretons and Afghans, in Wallachia and 
 several other regions we find village communities. 
 
 252. Examples from Ancient Europe. In primitive 
 Switzerland the "allmenden" or communal property 
 included the forest, grazing, and cultivated land. To 
 have a right to a share in its enjoyment, it was necessary 
 above everything else to be a resident of the commune, 
 to have the right of political citizenship, and also to be 
 descended from a family which had enjoyed such rights 
 from time immemorial, or at least for a century. The 
 "allmende" was found before the "mark" in southern 
 Germany, and consisted of the common property in 
 woods, meadows, and cultivated lands, the usufruct of 
 which went to the individuals of the family. In Am- 
 sterdam the common land of the clan or "mark" was 
 observed. Cognate institutions are the "almaenning" 
 of Sweden, the "aldmindiger" of Norway, and the "town- 
 ship" of Scotland, which recognized the common prop- 
 erty in the soil, its distribution in certain portions, and 
 private property in the house and enclosure. The 
 communal estates of Belgium and France reproduce 
 in varied forms and fragmentary ways the types of 
 collective property in the soil. These consist of land 
 occupied by an association of citizens free from private 
 appropriation and dedicated to the general needs of
 
 412 HISTORY OF PROPERTY 
 
 the association or the particular needs of the associates. 
 The communal property, writes Venezian in his book 
 "Reliquie della Proprieta Collettiva in Italia," goes 
 back to the very first state of the group of the family or 
 tribe which instituted agriculture in place of pasturing. 
 Pastoral communities, with the meadows given over to 
 alternate enjoyment under certain periodical distribu- 
 tions of land, with the forests and the communal lands, 
 indicated by such names, over which the private citi- 
 zens had special rights, give evidence of the survival of 
 archaic property. This can be seen to-day in parts 
 of Portugal and in not a few places in Spain and Italy, 
 as shown by latter-day studies. Among the Italians 
 there are still in the "marches" institutions very simi- 
 lar to the collective property of Switzerland, that is, 
 the "allmende." These are called "communanze," 
 "universita," "consorzi di famiglia," belonging to the 
 "marches'" and existing even before the Roman Age as 
 Valenti proved in "La Proprieta Collettiva nell' Ap- 
 pennino Marchigiano." In Fruilia and the ancient 
 Duchy of Modena we can still find extensive traces of 
 archaic property in communal goods. And in general 
 throughout the peninsula there are traces of ancient 
 servitudes of fishing, selling sod, sowing, and taking 
 firewood from the property of the community and the 
 citizens. According to some there are traces as well of 
 "usi civici" of the Southern provinces. In regard to 
 these "usi civici" in several of the provinces of Italy, we 
 should note that they are exercisible not only over prop- 
 erty of the nature of crown lands but also over all 
 private property called allodial or "burgensatische." 
 The property belonging to the crown was of various 
 kinds; in fact in mediaeval Italy imperial crown lands 
 were granted as feuds which became either feudal do- 
 mains or ecclesiastical or communal (so-called public)
 
 POLYNESIA AN EXCEPTION 413 
 
 property. All these different domains were subject to 
 the "usi civici," which constituted an inalienable and 
 indefeasible right if they were granted by the sovereign 
 power; whence it could be said "nee per regem tolli 
 possunt." Much erudite inquiry has been spent upon 
 the historical formation of these domains in which an 
 estate in the fullness of private control, by the influence 
 of Roman law, was subjected "pro bono publico" to a 
 great number of rights designed to provide the citizens 
 with the "necessaria vitee subsidia." The Neapolitan 
 jurists were of the unanimous opinion that these do- 
 mains were "jure naturae," subject to the civic uses 
 "ne cives vitam inertem ducerent et ne fama perirent." 
 It seems clear that Neapolitan estates of this kind 
 were created by the abandonment of private property 
 at the time of the fall of the Roman Empire; so they 
 can be considered more as a return to the ancient com- 
 mune than a relic of Rome. 
 
 253. Polynesia Shows an Exception to the Rule. 
 In Melanesia and Polynesia we find individual property 
 in land though they are hardly out of the state of tribal 
 community. In Australia, New Caledonia, at Viti and 
 Tahiti, there is not a sufficient development of civilized 
 conditions to justify the appearance of private property, 
 since the social state is still in its infancy. Nevertheless 
 this kind of property has arisen, making a notable excep- 
 tion to the rule of the primitive world. The rule of 
 common ownership is applicable to land and not to 
 personalty or the house and enclosure in which the indi- 
 vidual character of the person is first shown. But it can- 
 not be applied to land when there is no game in the place 
 occupied by the tribe, which necessitates pursuit over 
 great distances, but where reptiles, the lava of insects, 
 fish, and roots are in abundance. In this case there is no 
 need of a large expanse of common territory because
 
 414 HISTORY OF PROPERTY 
 
 there is no hunting, but it is more expedient to keep the 
 individual in his part of the land without freeing it from 
 the eminent domain of the tribe, exercised by the head, 
 as in the countries before mentioned. The inapplicabil- 
 ity of the rule cannot be said to be absolute on account 
 of the eminent domain. As long as man lives by the 
 chase, by fishing and gathering wild fruit, he considers 
 the object taken or produced by his own hands as his own 
 and has no thought of the appropriation of the soil. 
 Property in land limited to the space covered by the flock 
 of the tribe makes its first appearance in the pastoral 
 r6gime. The idea of individual property in the soil does 
 not appear even in the agricultural regime ; the property 
 is still in the tribe ; the arable lands, meadows, and forests 
 are cultivated in common. Later the cultivated land is 
 divided into parts by lot among the families who give in- 
 dividuals the temporary use of it, but the whole preserv- 
 ing its character of collective property of the tribe, to 
 which it returns from time to time to be redivided. The 
 parts, as time goes on, remain in the hands of different 
 patriarchal groups who occupy the same land again and 
 again. Thus the system of common possession and 
 periodic division falls into disuse; the land becomes the 
 hereditary and inalienable estate of the family. When 
 repeated fertilization and advance in agriculture has 
 made a richer soil, it can be easily understood that land 
 is left fallow for a very short time. The assignments are 
 at first made by each group for three years, in which 
 the cultivator works on the land, improves it, and leaves 
 the mark of his activity on it, but it becomes always 
 more difficult to separate the various groups from their 
 territory, and periodic distribution begins to be made 
 every six, nine, or ten years. Less and less frequent 
 become the new divisions and greater the injustice of 
 taking land which has increased in value through the
 
 FAMILY COMMUNITIES 415 
 
 application of labor and capital from those who labored 
 on it. In this we see the economic motive for the end of 
 the periodic division of land. In all this advance the law 
 of evolution is active, because there is an increasing divi- 
 sion or specification, all tending from the unformed homo- 
 geneity of the tribe to the marked heterogeneity of the 
 family. The heads of the latter cannot dispose by will 
 of the hereditary portion, for that always belongs to the 
 family, but they are owners of their saving and of what 
 they made by the labor of their hands. Women are 
 excluded from ownership of land because it otherwise 
 through marriage would constantly be transferred from 
 one family to another. They can have dowry from 
 the private property. In some aristocratic forms of the 
 family community there are family trusts; in others 
 the control is given to the eldest. In them the possessor 
 and the "primogenitus" are regarded as having the 
 use of the inalienable and indivisible property of the 
 family. 
 
 254. Ancient Family Communities. The family 
 communities date back to the Indians and Semites. 
 The associated family in India was a large corporation 
 of relatives maintained to an indefinite number of gen- 
 erations having as its object the communal methods of 
 support, the cultivation of land, and the preservation 
 of the cult. It had for its chief the "primogenitus" of the 
 eldest branch, or if he was not of sufficient ability, some 
 elected relative. The chief was not the "paterfamilias" 
 or "dominus," but simply the administrative head. 
 Caesar in speaking of the Germans said that none owned 
 land, but the head or magistrate distributed it every year 
 among the families, "cognationes hominum, qui una 
 coierunt." Among the Germans there was a "condo- 
 minium in solidum" in the family growing out of the 
 active and passive unity of relations (as is shown in the
 
 416 HISTORY OF PROPERTY 
 
 obligation of "faida" or "vendetta, "and in that of paying 
 tax or "wehrgeld" due to all the relatives of the victim). 
 This unity is still clearer shown with the "mundium" 
 and the hereditary possession on which the maxim is 
 founded: the dead enfeoff the living. All the relatives 
 were owners, and therefore there was some community of 
 possession. When the "munduald" died, those who 
 had been under his power either became heads of the 
 house or remained subjects of the new "munduald," 
 to whom there was an instantaneous transmission of 
 the goods under the "mundium." The members of such 
 a community elected a chief who governed the family 
 with the advice of its members and exercised an execu- 
 tive power. By the side of the "mayor" or master 
 there was a "mayorissa," also elected, who took care 
 of the domestic economy. The Irish "sept," a kind of 
 corporation of relatives of an industrial and agricultural 
 nature, whose existence depended on the occupancy 
 of the land, was very like the associate family of 
 India. No component of the "sept" could alienate his 
 hereditary part except in urgent necessity and with 
 the consent of all, but he could dispose of the cap- 
 ital gained by labor. This is the rule in the Indian 
 and Russian communities. The absolute control of the 
 tenant in "rundale" in Ireland gave emphasis to the 
 "mark," because a section of country was occupied 
 by family groups, the arable land was divided and 
 changed possession by temporary assignment, and the 
 pasture was common. A like mode of tenure is observ- 
 able among the Highlanders in Scotland. In Ireland 
 the hereditary farm was governed by the rules of "gavel- 
 kind," by which upon the death of the owner of a farm, 
 which was part of the "sept," the head made a new 
 division of all the lands of the corporation, adding to the 
 shares of the different families the inheritable property
 
 FAMILY COMMUNITIES 417 
 
 of the descendant. Such institutions tended to keep 
 relative equality among the associate owners as long as 
 periodical division was kept up. In Slavonia, Croatia, 
 Servia, the Coastal States, Bosnia, Bulgaria, Dalmatia, 
 and Herzegovina, we can still find that form of com- 
 munity called by the Germans "hauskomunion," and by 
 the Slavs "zadruga" or "druzina." The chief of Slavs, the 
 "gospodar" or "starchina," chosen by the members of the 
 community, has the executive power, although the legis- 
 lative power belongs to the community itself; he is the 
 guardian of minors, and represents the family in the courts 
 and before foreigners. He is assisted by a woman, also 
 elected, whose duty is the direction of household affairs. 
 The family is a civil person ; its estate is indivisible. There 
 is, therefore, no inheritance of real estate, yet person- 
 alty is inheritable because each of the members of the 
 family is allowed to get together his own herd. Sons 
 have a right to a part of the products of the land, not 
 through heredity, but because of a personal right or of 
 participation in the work upon the common property. 
 The right to dispose of land by sale or will is not allowed 
 as long as any member of the family is alive. A daugh- 
 ter can receive her dowry but has no right to claim part 
 of the real estate. Even in Italy there are traces of this 
 kind of tenure which have combined (as Jacini says) 
 with the system of leasing for a share of the crop. The 
 associations of this kind in northern Italy, especially in 
 Lombardy, are composed of four or five families living 
 together in a house situated on a large estate. They rec- 
 ognize the authority of a "reggitore" and "massara." 
 The "reggitore" sells, buys, and invests the savings and 
 directs the work with the advice of the associates; the 
 domestic cares are given over to the "massara." And 
 here we should mention the two institutions of the 
 "homestead" and "hoferecht." The first, begun in
 
 418 HISTORY OF PROPERTY 
 
 Texas in 1839 and then extended to most of the States 
 in the Union, is a law that forbids creditors from 
 sequestering the farmstead of the family, on which 
 the family has actually established its home, for it is 
 the home which the law protects. It is necessary that 
 there be an inhabited house on the land granted. 
 The other institution of "hoferecht" (a German and 
 Austrian institution) takes from the hereditary assets 
 a part of the land called the family inheritance, which 
 pass in their entirety to a privileged heir. Both insti- 
 tutions consequently propose to preserve a part of the 
 domestic property, declared such by the head of the 
 family and recognized as such by the law and by out- 
 siders, and to insure the permanence of the family. 
 
 255. Disbelief in the Theory of the Priority of 
 Collective Property. Belot wishes to show (especially 
 against Laveleye) that private ownership of land 
 preceded the collective. He thinks that property has 
 not descended from the tribe to the family and from 
 the family to the individual, but that the family is a 
 union of individuals and the tribe a union of families. 
 Collective property is only the extension of individual 
 property to a family more or less large. The father 
 of the family, as the head or absolute king, was 
 originally the owner of the house and enclosure. 
 This property was necessary to the defense of the 
 family and the preservation of the domestic relig- 
 ion. The "gens" and the village (a growth of the 
 family) possessed a common property presupposing the 
 original individual property of the ancestor. We can see 
 in the Island of Nantucket that twenty-seven colonists 
 began to distribute among themselves the land neces- 
 sary for the construction of their houses and the forma- 
 tion of enclosures, and have kept in common only the 
 pasture and cultivated land. Such is the system that
 
 THE THEORY OF PRIORITY 419 
 
 must have been in vigor in primitive times. The col- 
 lective property of agricultural associations of the Middle 
 Ages was created by grants of individual property. The 
 agrarian communities of Russia originated in conces- 
 sions by the nobility; consequently the community of the 
 serfs inhabiting a village is subsequent to private prop- 
 erty. Now the opinion of Belot is opposed to the law of 
 evolution as it refers to property and family. Nor is it 
 based on solid arguments. Aucoc in "Caractere Collectif 
 des Premieres Proprietes Immobilieres" notes that the ex- 
 amples given by Belot are of a date long after the primi- 
 tive ages when private control of land was established in 
 its entirety, nearly contemporaneous with the agrarian 
 communities of which he speaks. Belot did not examine 
 the origin of the agricultural communities of the Middle 
 Ages or distinguish the association of the serfs, to escape 
 the death tax, from the association of free men. Prob- 
 ably he would have found a different origin of collective 
 property in the two kinds of communities if he had dis- 
 tinguished them clearly. Without doubt he makes 
 clear that the colonists of Nantucket did not invent the 
 constitution of private and collective property in their 
 island, but reproduced the old Scotch custom of "lauder," 
 which has an extremely archaic form according to Maine. 
 Such a custom, according to Maine and Belot, is the type 
 of the most ancient uses of Germanic property and culture. 
 But it is difficult to admit that the Germans have not 
 passed, in a remote age, through a nomadic state before 
 reaching the condition in which Tacitus found them, 
 who spoke of their neighbors without arms, horses, 
 houses, or agriculture. How had these people and the 
 Germans passed from the nomadic state? If Belot had 
 studied the phases of property among the Arab tribes 
 of Algeria, the transition would have been clear. Some 
 of the Arab tribes are still in a nomadic state, covering
 
 420 HISTORY OF PROPERTY 
 
 great distances with their herds. Others are nomads 
 only, within a limited space, and are occupied both with 
 cattle and the cultivation of the soil, but live in tents 
 and have no fixed habitation. Other tribes, near cities, 
 know of the advance in agricultural methods in culti- 
 vation and irrigation. They have permanent houses, 
 and in these tribes, side by side with the public domains, 
 there are the "melk" and "arch" lands. The first are pri- 
 vate property and have a family character, for a member 
 of the family can annul their sale, reimbursing a foreign 
 purchaser. In the second, which form the greater part, 
 for a long time the tribe has had a simple right of enjoy- 
 ment. These facts have the double advantage of being 
 contemporaneous and of existing in a society which has 
 remained in an almost primitive condition, and show 
 how people pass from the nomadic to the sedentary state, 
 and how the property of the tribe is transferred little 
 by little to the family and the individual. 
 
 256. Christianity Developed Individuality. Chris- 
 tianity shows the value of the individual, the image 
 of God, and recommends work, the source of produc- 
 tion, and sacrifice which is the origin of thrift and 
 of that universal brotherhood economically realized 
 through the universality of interests. It is true that at 
 first Christian teaching preferred poverty and a life of 
 charity; it is true that it looked upon wealth as the 
 means to the fulfillment of beneficence and charity, 
 tending towards the spontaneous community of goods: 
 but we cannot fail to recognize that the new religion did 
 not have many followers in a world which was still 
 pagan, and for that reason at first abhorred all that 
 could offend its purity by any connection with the 
 worldly pleasures and sensual inclinations of the pre- 
 ceding age. At this time Christianity opposed to the 
 law of the flesh that of the spirit, to worldly wisdom
 
 THE FEUDAL SYSTEM 421 
 
 superhuman virtue, to the terrestrial city the City of 
 God, and social fraternity and spontaneous common 
 ownership to the egoism of the Roman landowner with 
 his "plena potestas in re" and his quality of "moderator 
 et arbiter." This abhorrence began to disappear through 
 the contact of the new opposite terms, by which the 
 world was Christianized and the Christian religion was 
 made even too mundane. Barbarian individualism con- 
 tributed not a little to this transformation and to the 
 development of personality made sacred by the religion 
 of Christ preventing, as Guizot says, society after the 
 orgy of pagan egoism from losing itself through the 
 ascetic spirit of communism in the depth of a limitless 
 abnegation. 
 
 257. The Feudal System was Individualistic. The 
 feudal system, derived from the subordination of pub- 
 lic office, of territorial jurisdiction and seigniority to 
 the category of private law, that is, to the laws of 
 property, family, and inheritance, was the emanation 
 of the personal principle. The grantee of land had 
 control over it; the control was at first temporary, then 
 hereditary, and ultimately acquired the character of a 
 family possession which could be transferred and trans- 
 mitted with the rights of alienation and subinfeudation. 
 First in the feudal system are the figures of the grantor 
 and grantee, and therefore the right of private property 
 connoting jurisdiction. In this entered all the social 
 elements, even the more spiritual, and from this the 
 worldliness of the religious idea was increased through 
 the temporalities of the Church, now grown into a com- 
 plete and powerful hierarchy. The feudal system was a 
 vast hierarchy which undertook to correct the erring 
 existence of the people of Europe and to give it a fixed 
 order and develop individual energy in their estates and 
 castles reinvigorating the bonds and ties of the family.
 
 422 HISTORY OF PROPERTY 
 
 This hierarchy was strong enough to establish a chain of 
 limitations on the power of princes and monarchs, 
 although it denied the principles of liberty and equality. 
 Vico teaches that the feudal system was a reflux and 
 that there is an eternal law of feuds. To many the 
 idea has seemed false because advances and reflexes 
 destroy history (that does not presuppose simple con- 
 tinuity, but mutability) and do not show the proper and 
 true character of acts and institutions. Certain it is 
 that the feudal system, as organized in the Middle Ages, 
 was never seen before and will never be seen again. 
 The feudal system, understood in its entirety and in its 
 historical development, is not a reflex, though its primary 
 elements can be found in the earliest antiquity, espe- 
 cially among the customs of the primitive Aryans. In 
 this aspect Vico is right. Its idea appears as a great 
 intuition which has hardly shown all its richness in our 
 days when it commences to be developed by analysis 
 and with the aid of erudition in comparative and critical 
 history. Maine, among all the moderns, has come 
 nearest to the Neapolitan philosopher (whom he does 
 not quote and of whom perhaps he was ignorant). 
 The feudal system according to the English writer had 
 its beginning in Roman emphyteusis, in the limitrophic 
 camps, 1 in patronage and the primitive customs reintro- 
 duced into Europe by the Germans. The great patri- 
 cians possessed large estates cultivated by bands of slaves 
 directed by other slaves or freemen. Such a system 
 was harmful to the interests of Italian municipalities, 
 whose representatives, often changing, were not in a 
 position to take care of the cultivation of extensive 
 domains. The municipalities began, therefore, to make 
 perpetual grants of land to free cultivators who must 
 pay a fixed rent and fulfill certain conditions. The 
 
 1 Vide, Maine, Ancient Law, 10th Ed., p. 309.
 
 VILLAGE COMMUNITIES 423 
 
 example was followed by private owners and the grantees 
 became subject to a right almost equal to that of owner- 
 ship. Thus the bands of slaves were transformed into 
 groups of colonists or rural serfs who owed the patron 
 a portion of the crops produced. In the great forests 
 along the Rhine and the Danube there were limitrophic 
 camps 1 occupied by Roman veterans who held them 
 from the State by emphyteusis with the duty of respond- 
 ing to military calls. Patronage relied on gratitude, 
 respect, and aid, which really are duties of a vassal 
 towards his lord. 
 
 258. Feuds Come from the Village Communities. 
 Among the Germanic customs and institutions, the 
 division of society into compact groups of families and 
 classes is notable. The family is administrated by the 
 eldest member or one elected in his stead. The classes 
 are governed by a member of the dominant family. 
 Tacitus observed that among the Germans the chief 
 received from the king cattle and grain as a recompense. 
 The companions of a chief lived with him and received 
 a horse and their weapons, as is the rule to-day at the 
 court of a Kaffir chief in South Africa. The chiefs were 
 rich in cattle, perhaps on account of their military 
 operations, but they did not have sufficient pasturage. 
 On the other hand, the people lacked capital to apply 
 to the cultivation of the land; whence the necessity of 
 taking cattle from the chief and of becoming his man 
 and of rendering him services and homage besides paying 
 rent. The scarcity of capital makes us understand why 
 in remote antiquity everything depended on the oli- 
 garchs. In Athens the people were slaves to debt. 
 In Rome the plebeians were heavily bound to the 
 patricians. In Germany the influence of the equites, 
 borne witness to by Caesar, grew with the quantity of 
 
 1 Vide, Maine, Ancient Law, 10th Ed., p. 309.
 
 424 HISTORY OF PROPERTY 
 
 debtors. In such an unfortunate state, there is, however, 
 an eternal law of re-accommodation that was one of 
 the causes of the feudal system. The very word "feud" 
 is derived from an ancient gothic word "fihu" or "fiu," 
 meaning cattle, the chief source of wealth in primitive 
 times. The bull was sacred in India and a "res mancipi" 
 in Rome; the word capital comes from "caput" and means 
 horned beasts counted by heads. When the population 
 multiplied and conquests grew enormously, gifts of 
 land took the place of the assignment of cattle or gifts 
 of arms, and therefore the idea, associated at first with 
 personal grants, continued probably to refer to land. 
 Originally a feud related more to the State than to owner- 
 ship. The lord was the /ScwiXeCs, the king; the freed 
 men formed the yepowia, the senate or counsel; the vil- 
 lains represented the mass of the people who had under 
 them the slaves. The seigniorial court was the ancient 
 assembly of the village which was concerned chiefly 
 with the administration of justice. Other questions of 
 general interest were discussed under the presidence of 
 the lord and peers of the manor. The villains were pres- 
 ent as a crowd at the deliberations. The tribute at 
 first had the character of a tax and took the place of 
 the ancient subsidies paid by the administration of the 
 little village communities. The overlord answered 
 for the feud and was the administrator and governor. 
 The land belonged to him only in part and he received 
 the rent from the lords of different rank. Immedi- 
 ately under him came free lords who rendered him mili- 
 tary and honorable service and were obliged to follow 
 him in war. The greater part of the soil was occupied 
 by the villains who owed the lord every kind of service 
 and could not abandon their land or inheritance without 
 his consent. The law in theory gave the lord the prop- 
 erty in the villains' personalty. The whole organism
 
 PERSONAL PRINCIPLE DESTROYED 425 
 
 reproduced in its fundamentals the type of village 
 community although modified in not a few parts. The 
 chief difference between the feud and such a community 
 consists in the substitution of private authority for 
 common power. What the lord could do, that could 
 be done by the head of the village and the council of 
 the elders. The chief and elders were responsible to 
 the community but the lord succeeded in being the 
 owner of the soil. 
 
 259. The Personal Principle Reinstated by the 
 Reformation was Again Destroyed. The Reformation 
 destroyed the ecclesiastical hierarchy and allowed the 
 direct reconciliation of man and God and the inter- 
 pretation of the divine word by the individual, and 
 went back to the rights of the spiritual personality. 
 The enemy of the intermediary and the hierarch and 
 inspired by the principle of individual personality, 
 the Reformation opposed the hierarchical system of 
 ownership. In this opposition it was aided by Roman 
 law which did not recognize other title to land than that 
 derived from the free disposition of the owner. Feudal- 
 ism had made the king the supreme lord; the jurists 
 appealed to the traditions of imperial Roman law 
 exaggerating the signification of royal power and 
 changing it into the eminent domain of the prince in 
 order to destroy feudal bonds. Later, in another 
 struggle between the despotism of the king and the 
 ancient regime, the eminent domain was given to the 
 nation. Property was placed upon the basis of the per- 
 sonal principle, and in confirmation of such a principle 
 proclaimed by the French Revolution, it was regu- 
 lated by a civil code. This principle, brought to light 
 by the Reformation, demonstrated by natural law 
 and shown by study of Roman law with respect to real 
 rights, was emphasized by industrial labor which
 
 426 HISTORY OF PROPERTY 
 
 created personal property. The limitations of the "fidei 
 commissus" and of primogeniture disappeared. We can 
 no longer find the trace of eminent domain; the right 
 to hunt over the estate of the peasants has been de- 
 stroyed; the rules about cultivation and harvest have 
 been done away with; and the abolition of the rights 
 of use, pasture, woodbote, the last vestiges of the primi- 
 tive communism, have begun. Privileges are becoming 
 rarer. Estates are divided. The right of the co-heir to 
 demand partition is recognized. Hereditary equality 
 in personalty and realty is enforced. Land is demo- 
 cratic. Legislation, however, has not yet completed 
 the work and does not apply democratic principles to 
 all kinds of property, to goods, for example, though 
 of less importance than land in the doctrine of the 
 physiocratic school, according to which agriculture alone 
 furnishes a net product and all the other industries are 
 unproductive. Personalty brings men closer together, 
 cements their union, promotes fraternity and close 
 relations, feeds those who cannot gain their living from 
 the soil, and is a protection for the individual, who can 
 remove from the vexatious or absorbing action of the 
 State by emigrating with his goods and chattels. On the 
 contrary, ownership of land binds a man to the soil, 
 obliges him to apply his activities to it, gives him 
 a house and isolates him, and is a sign of subjec- 
 tion and obedience. Goods and chattels, connected 
 in the most immediate and sensible way with the 
 individual, were at first tangible, such as weapons, 
 clothes, and other utensils. They preceded property 
 in the soil and were well developed among the Ger- 
 mans who, proud of individual autonomy, favored 
 their circulation with the maxim that possession is nine 
 points in the law. This maxim means that voluntary 
 delivery of a thing made by one who is not its owner
 
 MODERN INDIVIDUALISM 427 
 
 to another in good faith gives him property in it. The 
 free cities showed in history great progress in art, manu- 
 facture, and commerce, and therefore a notable in- 
 crease in personal property, to which the return of the 
 Crusaders loaded with merchandise and precious objects 
 (and cured of all illusion of finding their divinity in a 
 sepulchre) contributed largely. A century thereafter 
 this kind of property was immensely increased by the 
 progress of production aided by development in mechan- 
 ics and freedom of work. It constitutes a highly variable 
 and, as it were, a capricious kind of wealth, observes 
 Rossi, and tends to become the most important. Despite 
 the irregularities of their movement, goods and chattels 
 were raised to a high level and will be raised higher 
 still. A strenuous and prudent organization of industry, 
 commerce, transportation, and credit is what our social 
 state demands. Like the results of all of the revolu- 
 tions, these facts have in themselves both good and ill; 
 a prosperous future if the publicists, economists, and 
 legislatures fix their attention on them, one of incal- 
 culable misfortune if they neglect them. 
 
 260. Modern Individualism. The evolution of 
 property is connected with complete individualization 
 which, left to itself and deprived of the necessary 
 modifying influence, leads to an orgy of selfishness 
 and consequently to the savage destruction of poverty. 
 When the individual becomes the beginning and end 
 of everything, the State becomes, small and is only 
 a means of defense of the individual and his belongings. 
 As in the ancient world society absorbed the individual, 
 so to a certain extent in modern times the individual has 
 absorbed society. Individualism, however, in our day, 
 has described a parabola and is almost exhausted. A 
 new theory, which has gained ground in political doc- 
 trines, makes for the harmony of the ancient notion of
 
 428 HISTORY OF PROPERTY 
 
 the social community with the principle of personal free- 
 dom. The doctrine regards the community, and there- 
 fore the family and the State, as ethical organisms, the 
 one within the other, in which the parts live the life of 
 the whole but have also their own value and personality 
 as well. Man in the abstract and concrete, in virtue of 
 such a doctrine, beccmes cause and effect, reciprocal 
 means and end; the individual, the family, and the 
 State in their medial quality have duties, in their ulti- 
 mate quality have rights. It is clear that this concep- 
 tion once accepted, atomism should be disregarded even 
 in the sphere of property. The defeat of atomism does 
 not mean the negation of individual personality, because 
 the period is beginning in which, having developed and 
 tried to withdraw from society, it re-enters, takes its 
 place, and recognizes its subordination to the organism 
 as a whole. True evolution, we must repeat, is not 
 only individualization, but growing correlation, so that 
 property remaining individual should not be egoistic, 
 but should obey social aims in a system of rational 
 limitations conforming to the historical condition of the 
 people. One-sided and erroneous are the ideals of the 
 individualist and the socialist, for one sees only in evo- 
 lution the abstract tendency to progressive particularity 
 and the other loses sight of the diverse aspects of this 
 progress in the material world and only notices the 
 object of the whole and organic correlation of the parts. 
 261. Primitive Means of the Acquisition of Property. 
 The means of acquisition in primitive society were 
 very difficult and complex because the relations estab- 
 lished were not between individuals but between organ- 
 ized social bodies, between the diverse communities 
 existing in the midst of the tribe. An individual in that 
 age did not acquire rights and duties by himself, but 
 as the head of a society or family. The methods of
 
 ACQUISITION OF PROPERTY 429 
 
 acquisition, since the mind lived in sensations and 
 images, lay in ceremonies, rites, and symbols, and de- 
 manded the presence of a great number of witnesses. 
 The inherent difficulties were overcome one by one. 
 Maine shows the methods with truth and precision. 
 The first method of conquering this difficulty was , the 
 division of property into categories. The goods of a 
 higher category were those first known; those after- 
 wards learnt were in a lower category. Those of higher 
 category were acquired with difficult and solemn methods. 
 They were the "res mancipi," to which the "manci- 
 patio" applied. The others of the lower category, the 
 "res nee mancipi," were transferred by the natural and 
 easy method of "traditio." The methods for the acqui- 
 sition of property of the second category were facile 
 and suitable, and consequently they were soon extended 
 to goods of the higher category. At the time of Justinian 
 "traditio" was enough to pass property in the "res 
 mancipi." Here we must destroy an illusion of the later 
 Roman jurisconsults, who generalized from their own 
 time and believed that "traditio" was older than 
 "mancipatio," while in fact the "traditio" only 
 dominated after the "mancipatio" had lost its force. 
 Gaius says, "Quarundam rerum dominium nanciscimur 
 jure gentium quod ratione natural! inter omnes homines 
 perseque servatur quarundum jure civili. Et quia an- 
 tiquius jus gentium cum ipso genere humano proditum 
 est, opus est ut de hoc prius referendum sit." Besides 
 the distinction of goods by categories or kinds, there 
 was another means of distinction of later origin. In 
 India the father could alienate inherited goods only with 
 the assent of his sons, but could freely dispose of goods 
 acquired through his own industry. In Rome a son had 
 free disposition of money earned in the army. Among 
 the Germans, free and allodial land was difficult of aliena-
 
 430 HISTORY OF PROPERTY 
 
 tion. To allodial land succeeded feudal land, and then 
 there only remained the distinction between land and 
 goods recognized by Roman law, although of not 
 so much importance as the distinction between "res 
 corporales" and "res incorporales." In the Middle Ages 
 land was thought more of than goods, which acquired 
 thus great importance and the laws referring to it 
 tended to become absorbing because wealth was con- 
 verted into personalty. 
 
 262. Modern Distinction of Land and Goods. Mod- 
 ern legislation considers the division of land and 
 goods as fundamental, but we must inquire if this 
 is admitted by rational laws Zacharia thinks that it 
 lies entirely in positive law because he conceives rational 
 law within the boundaries of subjective rationalism, 
 which deduces everything from the category of thought 
 separating it from the exteriority. Such confines being 
 overcome, and starting with the principles of natural 
 law founded on objective rationalism, we come to a 
 different conclusion because the object is what urges 
 the faculty to act and in the object the act terminates and 
 is quiet, as Rosmini says. Every right is a power over 
 an object which determines its bounds according to its 
 nature. The nature of the object is the basis of the 
 diversity of rights, as the natural differences of men 
 constitute the base of the differences of persons. Puchta 
 teaches that in all external things law singles out what 
 they have in common, their essence, which is subject 
 to law. The right over a thing itself is the same 
 whether it treats of land, animals, plants, or anything 
 whatsoever. But this natural diversity was not foreign 
 to law that makes a difference between land and 
 goods, between rural and urban property, between 
 wild and domestic animals, etc. The question arises, 
 when the speculative suggestion is raised, whether the
 
 MEANS FOR ACQUISITION 431 
 
 modern division is primary or secondary,' fundamental 
 or not. Rational law, it must be admitted, prefers the 
 Roman classification of objects into corporeal and 
 incorporeal, because both land and goods are cor- 
 poreal. The Roman classification is objective as well 
 as the modern, and at the same time it has the advantage 
 of being logically primary, apart from any discussion 
 as to the practical or jurisprudential value of the one 
 or the other. It places material things, real or personal, 
 on one side, and on the other the rights which are also 
 useful and permutable external objects of financial 
 value. The ambiguity arises in confusing what is 
 incorporeal with what is intrinsic to the mind or person. 
 Now what is incorporeal is not intrinsic or inseparable 
 from the ego. A patent right, for example, is certainly 
 incorporeal but extrinsic; it is part of one's estate and 
 can be the object of exchange. 
 
 263. Other Means for Rendering Acquisition More 
 Easy. Other means of conquering the inherent diffi- 
 culty in the methods of primitive acquisition are found 
 in prescription, equity, and civil procedure. Prescription 
 offers the advantage of curing with years the defects of 
 a title of acquisition and of reuniting the possession and 
 property. Equity and the courts produce later another 
 important ad vantage. The owner "jure quiritium" could 
 take advantage of the "rei vindicatio" to defend his pos- 
 session. The proceeding was formal, long, and solemn; 
 and with time the need of a summary procedure was 
 felt and the defense of possession was allowed through the 
 "interdictum," which originally referred to the "habere 
 in bonis." The purity of procedure thus was hurt, but 
 society gained thereby a quick and easy means of pro- 
 tection. The "in jure cessio," a kind of fictitious sale 
 similar to the lease and release of the common law, 
 offered greater facility in transfer because the old owner
 
 432 HISTORY OF PROPERTY 
 
 did not defend against the action of sale brought by 
 the vendee and the judge "addicebat rem." Finally we 
 must note that methods of transfer of property in the 
 primitive period were public because the land belonged 
 to the tribe, the village community, or family, collec- 
 tive and strongly organic entities. Even when the land 
 belonged to an individual, society reserved important 
 rights (and among these the power of authorizing aliena- 
 tion) because it always wanted to keep foreigners from 
 the native soil. The ancient "mancipatio" bears witness 
 to the original publicity of acquisition. Public, too, 
 was the alienation of allodial lands. After centuries, 
 the principle of publicity reappears and obtains again 
 to greater extent for a different reason; that is, for the 
 protection of the rights of third parties.
 
 COLLECTIVE OWNERSHIP 433 
 
 CHAPTER VI 
 PREDIAL PROPERTY IN THE SOIL 
 
 COLLECTIVE OWNERSHIP OF LAND. WAGNER'S THEORY OF 
 THE OWNERSHIP OF MANUFACTORIES. SPENCER'S THEORY ON 
 THE OWNERSHIP OF LAND. PRIVATE OWNERSHIP OF LAND 
 AND RENT. THE DOCTRINES OF HENRY GEORGE AND OF 
 LORIA AS TO LAND. 
 
 264. Collective Ownership Disappears upon the 
 Development of Work. The less civilized people who 
 have not a well developed conception of the right 
 of property allow private ownership of weapons, clothes, 
 and ornaments, because work confers on these objects 
 a value apart from that of the raw material. Tribes 
 that live by the chase recognize, as a general rule, 
 that the property in animals belongs to him who 
 has killed or wounded them. In the life of semi- 
 nomadic races, property in the soil is collective, but 
 the products are given to the cultivators. When 
 civilization begins, the principle of private property, as 
 the result of man's acts, becomes more marked and 
 extended. The application of communism to the 
 products of the activity of the group or individual is 
 contrary to the most elementary ideas of justice. 
 
 265. Ownership of Land Subject to Same Rational 
 Law as Goods. There are some writers who think that 
 all the economic and juristic reasons for private property 
 in goods have no value in regard to land. These writers 
 belong to the school of territorial collectivism and are not 
 of one accord among themselves, some denying individual
 
 434 PREDIAL PROPERTY IN THE SOIL 
 
 property in houses, others limiting the application of 
 their theory to land. Wagner, for example, is not in 
 favor of private property in houses, and exchanges the 
 conception of control of property by the State for that 
 of absorption. He starts out with the principle that 
 private property is a loan entrusted by the State to 
 individual administration, and that when rents go up 
 the State has the right of re-appropriation. Between 
 urban and rural property there are, according to Wagner, 
 two important differences; a city house once built, the 
 owner does not expend any labor and for many years 
 is put to no expense, while the countryman must 
 expend labor and capital every year. The exceptional 
 gain received by the householder when there is an 
 excessive crowding of people into a determinate space is 
 much greater than that of the owner of the richest soil. 
 Wagner is right in making these two differences; he is 
 wrong only in considering private property as a loan to 
 the citizens by the State, denying the right of the indi- 
 vidual, who makes his impress on the object and makes 
 it a projection of himself. The State can and even 
 should limit this right, but not absorb it, for in absorb- 
 ing it, it does not recognize the human essence in the 
 individual and degrades him to the position of a simple 
 instrumentality. It is true that capital is the moving 
 factor in urban property, but capital is the work of 
 yesterday, as work is the capital of to-morrow, and in 
 capital there is the activity of man; and as a product 
 of such activity it should be respected. The State, in 
 cases of an exaggerated increase in rent, can lessen the 
 taxes or in a thousand ways urge the erection of new 
 buildings, can even erect them itself, and above all has 
 the power of appropriation, if necessary, but appropria- 
 tion should never be as general as the property, and 
 should not be connected with the erroneous idea of a
 
 SPENCER'S COLLECTIVISM 435 
 
 loan by the State. Here we should be careful not to 
 confuse two very different things, that is, unjust monop- 
 oly with the possession of things incapable of indefinite 
 multiplication. The first is an artificial and unreason- 
 able restriction of the freedom of production and should 
 be destroyed ; the second is in no wise connected with 
 true monopoly because it furnishes a return dependent 
 upon the change in value, and not upon individual will. 
 It is clear that the normal value of property capable of 
 free and indefinite multiplication is shown by the cost 
 of production, because, if the product brings more than 
 it costs, competition will reduce the price in a gradual 
 and progressive manner, and if the cost of production 
 is more than its value, the supply will decrease, because 
 no one will do business at a loss. But the normal value 
 of goods of limited quantity such as houses and land is 
 determined by the combination of supply and demand; 
 these two are not capable of indefinite increase. This 
 kind of property ordinarily brings more and sometimes 
 much more than its value, if the cost of production 
 expresses its true minimum value, as in the hypothesis 
 discussed by Wagner. We cannot say, however, that 
 their possession has a fictitious value in order to 
 destroy it by a forced appropriation, inasmuch as it is 
 the result of the legitimate connection, physical and 
 moral, of individuals with free or legally acquired objects. 
 In other words, there is no contradiction between the 
 conception of private property and that of the limiting 
 laws of nature, as we will see in the next paragraph. 
 
 266. Spencer's Collectivism. Spencer, in his "Social 
 Statics," says that private ownership of land is 
 unjust. Given a species of beings, he says, who have 
 equal right to enjoy the full scope of their tenden- 
 cies, given a world made for the satisfaction of their 
 needs, it is easily deducible that each of these beings
 
 436 PREDIAL PROPERTY IN THE SOIL 
 
 has a right to enjoy the good things of the world. 
 If each is free to do what he wishes, provided that he 
 does not offend another's freedom, each is free to take 
 natural gifts for the satisfaction of his needs, provided 
 always that he respects the same rights in his fellows. 
 The converse of the proposition is clearly that no one 
 can use land so as to impede an equal use on the part 
 of others. Justice, therefore (concludes Spencer) , does 
 not recognize individual property in the soil. If we admit 
 that a portion of land can be the domain of one man, 
 the other portions can be occupied under a similar title and 
 so the whole face of the globe would fall into the hands of 
 some individuals. The rest of mankind would live by the 
 toleration or good grace of the exclusive proprietors. The 
 arguments of Spencer, identical in the main with those 
 of all the writers who believe in territorial and complete 
 collectivism, are reducible to Fichte's proposition and con- 
 tain the same error. It is undeniable that all men have 
 an inherent right to property and that things are made 
 for all. There can be no doubt that it is the duty of 
 society and the State to recognize and protect the full 
 play of such essential rights in a human being. But 
 this inherent right of property is simply potential, and 
 so should be realized and transformed into the right of 
 property. Every man has the right to take advantage 
 of natural gifts, physical forces, and the soil, but no one 
 has a particular right over' the external world unless he 
 has applied his activity to it. If he has not made some- 
 thing, if he has not acted and thereby taken away the 
 abstract equality and created a reason for special juristic 
 privilege, the State should not act for him and create a 
 reason for a privilege, because the inherent rights of man 
 become acquired by the act of the individual himself, 
 whose power and faculty are in question. An individual 
 can exercise his natural right of property by applying
 
 SPENCER'S COLLECTIVISM 437 
 
 his action to the soil or in the sphere of manufacture, 
 industry, or commerce. The State is only obliged to 
 insure him conditions for the development of individual 
 activity, and is in no wise called upon to help him by 
 giving him the wherewithal. We must not forget that 
 land is of limited quantity and that at one time it was 
 not sufficient for all, and that the means of existence are 
 not won from it alone, but from the arts, industries, and 
 commerce as well. Spencer finally contradicts himself 
 because he says that industrialism promotes the devel- 
 opment of private property and that common property 
 in the soil is destined to reappear when industrialism 
 shall have reached the height of its development. How 
 is this possible, if industrialism, opposed to the mili- 
 tary system, signifies progressive differentiation and the 
 presence of individuality, contract, and voluntary co- 
 operation? Spencer, seeing the contradiction, writes 
 that industrialism has not actually reached its definite 
 position, and that we will have another phase in which 
 private property in land will disappear. As there have 
 been centuries in which the property of one man in 
 another was admitted, which right with the advance in 
 civilization was denied, so in the future, when industrial- 
 ism has received broader development, private property 
 in land will cease. But in his last book, "Justice," he 
 has no longer the same strong faith, although he says 
 that he is still convinced that the human aggregation 
 is the owner of the soil. He believes military systems 
 have been a constant cause of the loss of personal liberty, 
 the introduction of slavery, and even the destruction of 
 collective property. He adds that side by side with the 
 decline of the military belief and with the development 
 of industrialism, he sees personal liberty grow stronger 
 and stronger, and that we will soon be forced to a parti- 
 tion of land. If land should again become common,
 
 438 PREDIAL PROPERTY IN THE SOIL 
 
 justice would demand indemnification for the actual 
 private possessors. These possessors are not all descend- 
 ants of the first occupiers and usurpers, but many of 
 them have gained possession through derivative methods 
 of acquisition, and at the same time not a few members 
 of the proletariat are descended from the original 
 usurpers. Society has a right to have the land back 
 again as it was in the primitive state, but cannot appro- 
 priate what the possessors have expended throughout 
 centuries in labor and capital for ploughing, improving, 
 and cultivating. We would have to pay enormous sums 
 in such indemnity and in the end we would undergo 
 a loss paying more in indemnity than the value of the 
 land. To this indemnity we should enter also the sum 
 spent by the landowners for the assistance of the masses, 
 for this sum represents a part of the product of the so- 
 called private land. The re-transference of land to society 
 would produce a state of affairs perhaps worse than the 
 actual state through the control of "bossism," and the 
 administration by the State, the worst form from an 
 economic aspect. Spencer concludes that a more pro- 
 found examination of the arguments induces him to 
 adopt the opinion that it is better to maintain private 
 property in land, merely subjecting it to the sovereignty 
 of the State. This change of front on the part of the 
 English philosopher is very noteworthy. 
 
 267. Private Property is Economic. Once admitted 
 that private property is based on the personal principle, 
 economic sciences bring out its useful side. The use- 
 ful, it is well to remember, is no stranger to law 
 because it constitutes the material therefor. The dis- 
 tribution of wealth has for its base (and its only base) 
 the right of property referring interest, profit, and rent 
 to property in the capital and land, showing the con- 
 nection between capital and labor. If there were not
 
 PRIVATE PROPERTY ECONOMIC 439 
 
 individual and stable property, there would be very 
 much less stimulus to production and accumulation, 
 because man would not feel the fervor of work when 
 he was not sure of enjoying its fruits and of leaving 
 them to those who .after his death would continue his 
 personality. It is incontestable that agriculture pre- 
 supposes exclusive possession of land, at least from the 
 time of planting to that of harvest, as it is not pre- 
 sumable that any man would sow so that another might 
 reap. The alternation of crops, so necessary to the 
 productivity of fields (to which it restores strength), is 
 an object of "ars longa," requiring long possession. The 
 most active cultivator must invest large sums to make 
 but little profit. This is' not possible without certainty 
 of the future. It is not possible for any power to 
 determine the point in which the return from land be- 
 comes usurious because in farming, as in life, to-day 
 is a continuation of yesterday, and the. beginning of 
 to-morrow, and there is a cycle of production recom- 
 mencing with each new accumulation of capital. Exclu- 
 sive and continuous possession of the soil is the first 
 law of civilization and heredity, and is a form of the 
 connective tissue in the social organism, as Lampertico 
 observes in his book, "La Proprieta." With the estab- 
 lishment of private property we cannot fail to have 
 increased production; with the increased quantity of 
 wealth the State acquires a great economic impulse, 
 and is enabled thus to better and more fully take care 
 of the social welfare. Private property in favor of con- 
 sumers allows the competition of producers which would 
 be non-existent or restricted under a collective system. 
 268. Socialistic Communism. Socialists of a few 
 years since said that property in land was the usurpa- 
 tion of the rights of the chase, pasturage, and harvest; 
 those of to-day repeat the same accusation under a
 
 440 PREDIAL PROPERTY IN THE SOIL 
 
 different form, maintaining that land, minerals, and wild 
 beasts cannot belong to anyone because they are not 
 the result of human labor. This is very true as long 
 as the things have no real value, as long as the handi- 
 work of man does not appear in them, as long as he does 
 not place the stamp of his individuality upon them, but 
 when such an impress is made, then value is created 
 and property cannot fail to arise. To produce is not to 
 create, and even Marx, in his work "Das Kapital," cites 
 lengthily from Verri to show that all the phenomena of 
 the universe do not give us the conception of the crea- 
 tion but only that of modification of matter, and that 
 man can only unite and separate natural elements. 
 Now the so-called usurpation of the first occupant does 
 not take away but gives land to others, because it takes 
 less space for a family to live by agriculture than by 
 hunting and nomadic pasturing. The collectivists main- 
 tain that in the system of private ownership of land 
 humanity is rendered tributary to a few privileged per- 
 sons and they wish, for the benefit of humanity, the col- 
 lective forces and machinery reserved for the profit of the 
 laboring classes. But it appears to us that there is not 
 a shadow of tribute where the products are exchanged 
 for products, because tribute is a value without an equiva- 
 lent. But industrial products are exchanged for agri- 
 cultural products of equal value and consequently there 
 can be no tribute. To hold, therefore, that the collective 
 forces and machinery should belong exclusively to the 
 laboring class is only to confess destructive tenden- 
 cies and biassed hopes while one is declaiming for 
 humanity, society, collectivism, etc. 
 
 269. Rent Arises from the Work Expended on the 
 Land. Socialists are opposed to private property, basing 
 their arguments on the rent, due to the owner of the 
 land not dependent upon labor and capital. If this.
 
 RENT ARISES FROM WORK 441 
 
 surplus is a gift from God it should be gratuitous, 
 they say, and cannot be the object of individual appro- 
 priation. Property in this aspect is robbery, and rent a 
 monopoly. Not a few economists, with Bastiat at their 
 head, wishing to make the cause of property threatened by 
 such an attack secure, resolutely denied the right to rent, 
 and taught that the cooperation of the natural forces of 
 land is gratuitous and should remain gratuitous in the 
 system of property, because it does not enter into the 
 price which the consumer pays the owner. He receives 
 with the payment what he has invested in capital and 
 labor in the land and nothing further. The socialists 
 and economists have not reflected that goods acquire an 
 economic character only when they are part of a limited 
 quantity. The true sources of wealth are those which 
 satisfy needs and are exchangeable and alienable. Alien- 
 ability demands that the thing be external to the grantor, 
 acquirable by man and of limited quantity, because if 
 they were inseparable from the person and if the man 
 could not possess them, exchange would be impossible; 
 thus also if their number were such that everyone could 
 have them at any time without labor. The law of limita- 
 tion, illustrated by Cossa in "Elementi di Economia" 
 and his memoirs, arises more or less in all branches of pro- 
 duction, because natural forces are not distributed equally 
 but differ in quality and quantity, and also because of the 
 abundance and scarcity of capital and labor; the relation 
 between fixed and circulating capital, between manual 
 and intellectual labor, determine an industry by their 
 variances. When one speaks of goods capable of an 
 indefinite increase one does not disregard the law of 
 limitation, because these goods are only relatively 
 unlimited, in comparison with others of a more limited 
 quantity. The products of manufacture, capable of 
 multiplication quicker than crops, belong to the first
 
 442 PREDIAL PROPERTY IN THE SOIL 
 
 category, although their multiplication meets its limit in 
 water, air, coal, or wind. From the divers combinations 
 of qualities and quantities of these limits arises the 
 fluctuation of prices in general and of rent in particular. 
 Rent can be seen more clearly in the property of arable 
 land and of factories, because these show more clearly 
 the law of limitation. It can be seen constantly where 
 there is an oversupply not due to capital and labor but 
 to the coexistence of productions of the same kind, which 
 demand varying expenditure in production. The most 
 expensive production, where the cheaper cannot meet 
 the demand, shows the average value. Rent is the sur- 
 plus of the producer on whom the least expense of pro- 
 duction falls. It is derived from natural and artificial 
 elements. These latter can be incorporated in the object, 
 for example, in the soil, in such a way as not to constitute 
 a distinct capital. The situation, the richness and fer- 
 tility of the soil are natural elements, but the hand of man 
 and work of civilization are not foreign to it, because the 
 situation depends on the means of communication, the 
 richness of the soil is renewed by science, and fertility is in- 
 creased by labor. The owner's labor in such a case may 
 have lost its individuality and been incorporated in the 
 soil. Rent, not entirely an effect of the forces of nature 
 or conditions dependent upon the action of man, repre- 
 sents a handicap but is very analogous to that which 
 the basic nature of man carries from birth and receives 
 from education. He who will not consider the natural 
 differences between man and man, and is biased by their 
 identity, will find the phenomenon of rent unjust. Pasini, 
 cited by Lampertico, says that there is always one man 
 who has the greater capital or a better site, with the 
 capacity of carrying on a work more advantageously. 
 Under the economic juristic aspect, property in capital 
 and labor and property in land are the same. The
 
 HENRY GEORGE'S THEORY 443 
 
 cultivator who carries out a more limited plan and has 
 a more limited capital and therefore obtains less results 
 cannot say that the cultivator, furnished with capital for 
 more advantageous exploitation, should be debited with 
 the difference. Rent is not unjust on another score; 
 it is a surcharge which is reduced to a compensation 
 through past and future changes of the productive fund. 
 It is a kind of insurance; not reciprocal, not that of the 
 State, but of the owner towards himself. Rent is re- 
 duced with the increase of production which, as we have 
 already seen, is effected by the system of private property. 
 Private ownership is not the cause of rent, which 
 varies with the cost of production, but accompanies it 
 and makes it an attribute of the owner alone ; and so, if 
 there were no private property, rent would not be lack- 
 ing to satisfy the needs of the population which would 
 require an equally expensive cultivation. 
 
 270. Henry George's Theory. In order to study 
 the theme of private property in land under the eco- 
 nomic aspect, let us for a moment study two recent and 
 important theories, the theory of Henry George and that 
 of Loria. The concrete and real character of social acts 
 should not be disregarded by the philosophy of law, 
 facts whose economic structure is a natural presup- 
 position of the juristic relations and civil institutions. 
 Henry George, the representative of scientific American 
 socialism, confuses the control of private property, 
 which preserves it intact, with its absorption, in his book 
 "Progress and Poverty." He asks why poverty is 
 greatest where the progress is greatest? Why, with the 
 increase of productive ability, wages tend to minimum? 
 Modern political economy, as he calls the classic doc- 
 trine, answers that wages, being determined by the 
 number of laborers and the proportion of capital to pay 
 that labor, decreases because the number of laborers
 
 444 PREDIAL PROPERTY IN THE SOIL 
 
 increases in greater proportion than the augmentation of 
 capital. Such a solution, says Henry George, depends 
 upon two erroneous theories, on the theory of wages 
 and that of Malthus. It is not true that wages are paid 
 by capital, but they grow out of productive labor. It 
 is not the employer who precedes the labor, but the 
 labor that precedes the employer. If every laborer 
 makes the fund from which he receives his wage, wages 
 could not diminish with the number of laborers, provided 
 that the efficiency increases with the number of laborers. 
 The more laborers there are, the higher should be the 
 wages, all things being equal. Statistics prove that the 
 higher nations are not those in which nature is more 
 prodigal, but the nations which are marked by a more 
 productive labor, and that with the increase of popu- 
 lation there is a corresponding increase in the medial 
 production of wealth. The cause of the decrease of 
 wages and the increase in poverty, according to the 
 more progressive philosophers, is not to be found in 
 the law of production but in that of distribution. Rent 
 does not represent in any way an aid given to pro- 
 duction, but merely the power of assuring to the owner 
 a part of the results of production. The law of the 
 phenomenon of rent is found in the theory of Ricardo, 
 which Henry George formulates in a broader manner. 
 Property (he says) in a natural agent of production will 
 give the power of appropriation of so much of the wealth 
 produced by the labor and capital thereto applied as 
 exceeds the return from the same amount of labor and 
 capital expended, less productive in occupations, to 
 which it could be freely applied. Thus the interest 
 of the manufacturer and the wages of the laborers are 
 determined by the limits of cultivation. Rent increases 
 as the limit of cultivation is approached, and decreases 
 as the limit is increased. Interest and wages are lowered
 
 CRITICISM OF GEORGE'S DOCTRINE 445 
 
 when the limit of cultivation is approached, and increase 
 as it goes up. The movement of rent is progressive while 
 that of wages and interest which vanish is not. Rent 
 sometimes is increased through the increase of popula- 
 tion, through the progress of art and commerce, and 
 through speculation. Rent takes, therefore, what wages 
 and interest lose; both depend not on the product of 
 labor and capital, but on what remains above the rent. 
 In other words, wages and interest depend on what pro- 
 duction there could be without the payment of rent, 
 that is, of the poorest of cultivated lands. Whatever, 
 therefore, be the increase in productive power, if the 
 rent increases pari passu, wages and interest cannot 
 increase, and the owners grow rich and all the others 
 grow poor. The only remedy for the evil is the confis- 
 cation of rent through a single tax which would absorb 
 it all. The confiscation of rent is a remedy instrumental 
 to clearing the way for the final remedy of the nation- 
 alization of the soil and the recognition of the equal 
 right of all to the collective possession of land. This, in 
 a few words, is the doctrine of Henry George. 
 
 271. Criticism of Henry George's Doctrine. This 
 doctrine is founded in a great part on facts which 
 do not exist. It has no base in reality. It is not in 
 the least true (as has been observed by Rae in his book, 
 "Contemporary Socialism") that with progress the 
 poor become poorer and increase in number. Wher- 
 ever there is civilization and progress, there the number 
 of poor decreases and charity is largely developed, the 
 means of tenure of life increase and also the duration 
 of human existence. If in the great cities the poorer 
 class seems numerous, the same is also true throughout 
 the country districts; it is natural that in those places 
 where immense wealth and luxury exist the poor should 
 appear poorer than they really are. The true sign of
 
 446 PREDIAL PROPERTY IN THE SOIL 
 
 increasing poverty is shown by restriction of the num- 
 ber of things necessary to life and increased difficulty 
 in obtaining them. Experience shows that in times 
 of economic progress the number of needs which we can- 
 not renounce grows, and that there is a facility for 
 obtaining them even when there are not exceptional 
 conditions. The laborer of to-day is accustomed to have 
 many things that a hundred years ago it was madness 
 for him to hope for. This changed tenure of life through 
 the effects of civilization is taken into consideration in 
 his wages; for it is not true that wages have decreased ; in 
 fact, they have been increased as a result of increased de- 
 mands in all branches. If we make a comparison with 
 fifty years ago we will see the actual increase in wages, 
 even though we remember the changed value of mer- 
 chandise and money. If there is not a general decrease 
 in wages, the persistent poverty alleged by Henry 
 George is lacking. He should, too, consider all the 
 other causes of poverty, lack of foresight, alcoholism, 
 consumption, accidents, sickness, and death. It is not 
 true that the decrease in wages is produced by the con- 
 stant increase in rent which absorbs automatically the 
 greater part of the social income, because we cannot say 
 that the agrarian wages are increased wherever there has 
 been an increase in rent. Statistics show that rent bears 
 no greater proportion to-day to national wealth and 
 agricultural production than formerly, and wages are 
 not in a less proportion. The theory which Henry 
 George champions in place of the already abandoned 
 theory of the origin of wages is erroneous, since it 
 is not true that wages are always drawn from the 
 production itself and that the laborer precedes the em- 
 ployer. In fact, it happens in the majority of cases 
 that the value given by the worker in exchange for the 
 wages is not a true exchange for the commercial em-
 
 LAND NOT A GIFT OF GOD 447 
 
 ployer, until after the product is sold. Sometimes 
 years pass in which the employer receives nothing 
 from the product over which he has expended much 
 for raw material and wages. The other theory of 
 Henry George about population is equally false because 
 founded on the untrue hypothesis of the unlimited pro- 
 ductive capacity of the earth. There is no relation of 
 cause and effect between the increase of rent and the 
 decrease of wages. Rent and wages ordinarily have 
 the same favorable and unfavorable conditions. We can 
 even say that with the increase of rent the profits and 
 wages increase, and with its decrease they fall away. 
 This absorption of an always increasing quota of the 
 social income by rent is imaginary, for rent has a 
 tendency to increase with the increase of population that 
 urges men to cultivate the less fertile land, cannot be 
 a truly absorbent power because of the great technical 
 advance of agriculture which increases the fertility and 
 natural forces of the soil. Furthermore, the greater part 
 of modern wealth is not in the hands of the landowners, 
 neither is it increased exclusively by the existence of 
 rent. Industry and commerce are without doubt potent 
 causes in its extraordinary actual development. 
 
 272. Agricultural Land is not a Gift of God. Henry 
 George cannot consider that class which to-day holds 
 the greatest part of social wealth an influential factor, 
 that is, the capitalists and contractors to whom the in- 
 terest and profits belong. He calls wages profits and tries 
 to place the latter under the laws of wages while they are 
 really regulated by different laws, often opposed thereto. 
 Who can fail to see the difference between them? Accord- 
 ing to Ricardo, first wages and interest are paid and then 
 one takes out the rent, which is the over-profit, and repre- 
 sents what remains by the above process. Henry George, 
 on the other hand, says that wages and profits are deter-
 
 448 PREDIAL PROPERTY IN THE SOIL 
 
 mined by the rent while that presupposes the prevalence 
 of labor or capital. According to Ricardo, notes Rae, 
 rent in no wise affects the price of bread; its increase 
 is not a cause of high prices but rather it is the high 
 price of bread which increases rent. The price of bread 
 does not depend upon the will of the owner of the 
 land, but is derived from the increase of population 
 and the decrease of the harvests. Henry George 
 is governed by absurd ideas, since he believes that 
 the increase of population results in an increased offer 
 of food stuffs for sale, and that there cannot be a constant 
 decrease in the harvest because the material is unlimited. 
 This would be contrary to the laws of limitation of pro- 
 duction, and shows a confusion of the eternity of material 
 with the unlimited productive capacity of the earth. 
 Material is eternal, but its capacity is limited. The 
 two conceptions logically are not exclusive. Henry 
 George thinks that where there exists an abundance of 
 unappropriated land, there rent will be low and wages 
 high, because none will wish to work over anything to 
 obtain less than he can get from land which he can him- 
 self purchase for a trifle. But admitting that such a fac- 
 ulty of choice can exist and influence the wages paid by 
 employers to their workmen, there is no doubt that wages 
 would increase to the detriment of property. In such 
 an hypothesis, it is not possible to think that the 
 profits would increase, because the contradiction would 
 not permit it. We know, according to Henry George, 
 where there is an abundance of free land, rent is low, 
 and wages and interest considered by him as a natural 
 and legitimate increment of capital are high, but we must 
 not forget that he tries always to place these diverse 
 terms under the same law in order to oppose them to 
 rent. The proposed remedy by the confiscation of rent 
 through a single tax is not practical, because it is given
 
 LAND NOT A GIFT OF GOD 449 
 
 to no one to separate in the productive farm the elements 
 of rent from those of labor and capital. The nationaliza- 
 tion of the soil cannot render land more productive, to 
 argue from the economic conditions of those American 
 States which own a large part of their cultivated 
 soil, in relation to the system of private property 
 in the other States. There is, perhaps, not as much 
 or as widely extended poverty in those States which 
 have still vast territories at their disposition. Henry 
 George does not deny this fact, but tries to explain 
 it. The mistake in which he falls with many other 
 writers consists in regarding agricultural land as a 
 gift of God, forgetting that land only attains its value 
 when man applies his own activity thereto in ploughing, 
 fertilizing, cultivating, and making it a productive agent. 
 Cultivated land is as much the true production of man 
 as anything else in which the action of the individual 
 can be seen. It is strange that Henry George recognizes 
 private property in everything else, even in factories 
 which in the great centres give a greater return than the 
 farms, but denies private property in land which is not 
 a gift of God, except in the sense that an artificial 
 product is so given. He proposes control of property 
 in land equivalent to absorbing it, because he wishes 
 to confiscate rent. This confiscation of rent is in- 
 tended to pave the way for the nationalization of the 
 soil, a confiscation of private property. Land can become 
 an object of property as anything else, and can take its 
 part as an organ, projection, or investiture of the person. 
 It differs from other things because it is more subject to 
 the laws of natural limitation and does not enter into 
 the category of goods which can be indefinitely increased. 
 Its greatest productive capacity presupposes as a neces- 
 sary condition the system of private property. At this 
 point social economy joins forces with law, which should
 
 450 PREDIAL PROPERTY IN THE SOIL 
 
 control private property in land in such a manner as to 
 obtain from it the greatest good for the individual and 
 society. 
 
 273. Loria's Theory. Loria, in his book "La Terra 
 ed il Sistema Sociale," gathers together all the theories 
 of the economic system into three principal groups; 
 for some of them base economic phenomena on 
 man, others deduce them from a technical system, 
 and still others from the conditions of external 
 nature or more generally from land. The theory 
 which connects the economic phenomena with man is 
 the dogma of orthodox science. It affirms that the rule 
 of such phenomena is the necessary and immutable 
 product of the very nature of man, and the personal 
 interest which never far departs therefrom. Now this 
 doctrine cannot explain the diversity of historical rela- 
 tions in the different ages and the marvelous evolution 
 of social forms, because the personal interest is immu- 
 table throughout all times and is unaffected by the 
 modifying action of history. The theories of the second 
 group consider social relations as a product of the domi- 
 nant technical system, and are divided into socialistic 
 and commercial theories. The first make the system 
 of production and the series of special economic rela- 
 tions which govern all the acts of life and society corre- 
 spond to a given state of productive instrumentality. 
 But the evolution of productive methods makes a 
 radical change in the technical instrumentality, and 
 renders the antecedent system of production and 
 economics impossible. Then the antiquated economic 
 form is destroyed by a social revolution and sup- 
 planted by one more suited to the new phase of 
 productive instrumentality. This has occurred four 
 times, to which as many forms of economic relations 
 correspond, Asiatic, ancient, feudal, and the middle
 
 CONCLUSIONS OF LORIA 451 
 
 class economics. The constant progress of productive 
 instrumentality will soon render this economic form 
 impossible and will substitute a more perfect one, 
 consisting in the collective property of land and means 
 of production. The second theory of this group connects 
 the economic relations with conditions of exchange and 
 the commercial constitution. There is no choice between 
 these two doctrines of the second group because the 
 socialist does not see that technical instrumentality 
 itself must have a cause and must depend on some pre- 
 cedent element and that this, also imperfect, must be 
 connected with the new superior economic form. The 
 socialistic theory does not show the reason why, in the 
 period of undeveloped instrumentality, there should be 
 slavery, and in the period of machinery, wages instead of 
 collective property. The commercial theory does not 
 consider that the conditions of exchange are derivative 
 facts, the consequences of the economic system and 
 not true causes. 
 
 274. The Conclusions of Loria. The primary 
 element and first cause of social relations is land, 
 according to Loria. Land as the productive element 
 is the first cause of economic facts, distinguished from 
 the technical instrumentality which is a derivative phe- 
 nomenon, and is the moving cause distinguished from 
 the personal interest which is immutable in its structure 
 and intensity. Land is the basis of the economic system. 
 It is the supreme principle of political economy, which is 
 a mere natural deduction from the analysis of land and 
 property. The theory of land comprehends the law of 
 laws because it considers the social organisms substan- 
 tially diverse, which succeed one another in history, and 
 shows the first reason for the various historical laws 
 which have ruled those organisms. This supreme law 
 is the law of motion with the continually changing con-
 
 452 PREDIAL PROPERTY IN THE SOIL 
 
 ditions of occupancy and productivity for its object, and 
 not man, crystalized in the immutability of his character 
 and tendencies. The analysis of property in land can 
 be stated in its general results in the very words of Loria: 
 When land is free and when every man can and hardly 
 wants to occupy a portion of it and to expend labor and 
 capital on his own account, property will be impossible, 
 because there will be no worker disposed to expend his 
 efforts for the benefit of a capitalist. If the productivity 
 of the land is increased, the producers will have no need 
 of associating and limiting their own independence, so 
 that the economic form necessary will be the isolation 
 of independent producers; if, however, the productivity 
 of the land is decreased, the producers are disposed to 
 associate to increase the productivity of their labor and 
 under such conditions, therefore, the economic form nec- 
 essary is either the close association of producers, who 
 work together dividing the property into equal parts, or 
 the associations of producers and simple workers with 
 the division of products into equal parts. In any case the 
 division of society into a class of capitalists who are 
 not laborers, and of laborers who are not capitalists, is 
 not possible if the land is free, because it is impossible 
 to gain profit for a capitalist who does not work. The 
 formation of this kind of profit is only obtained by the 
 violent suppression of free land, where the population is 
 scarce and cannot occupy all the land. But with the 
 constant increase of population, and with all the land 
 cultivated, the workman loses at once that option 
 which is his greatest protection against the usurpation 
 of capital and is obliged to abandon to the capitalist 
 the greatest part of the produce. At this point comes 
 the profit not less violent, but automatic, due to 
 the appropriation of land which takes the option 
 from the proletariat. The basis of capitalistic property
 
 CRITICISM OF LORIA'S THEORY 453 
 
 is always the suppression of the free land, and the 
 exclusion of the workman from the land. Free land, 
 on the other hand, is the destruction of capitalistic 
 property. By the increasing demand of a progressive 
 population economic bonds, founded on predial property, 
 become intolerable, and therefore free land must be 
 reestablished , or rather the free property of the farm must 
 be established, recognizing in every man the right to 
 occupy as much of the earth's surface as he can cultivate 
 with his labor. On the basis of free property in land the 
 association of capitalists and workers will be made and 
 the social equilibrium will result. 
 
 275. The Criticism of Loria's Theory. The criticism 
 which Loria makes of the different theories is not 
 accurate, neither does his doctrine appear to us true. 
 How can he combat the theory which places human 
 nature at the base of social and economic relations, if 
 society be man in the abstract and if wealth, the object 
 of political economy, is due to the work of man and pre- 
 supposes his needs, ends, and activities brought to bear 
 upon the production of the means of satisfaction? The 
 conception of wealth is absolutely inseparable from that 
 of individual and social man. The conception of man 
 comprehends human essence, not as a quiescent prin- 
 ciple, but as urged on by an internal motion always con- 
 tinuous and progressive, by which human nature by 
 degrees reaches its ideal. This motion, which is one with 
 the action of external facts, constitutes history; human 
 nature cannot be understood without the history in 
 which it develops, not ever losing its fundamental char- 
 acteristics, which contradistinguish it specifically. In 
 spite of the diversity of the historical relations of dif- 
 ferent ages and the marvelous evolution in social forms, 
 man will always be man, and have tendencies more or less 
 individualistic and impulses, now weak and now strong,
 
 454 PREDIAL PROPERTY IN THE SOIL 
 
 towards sympathy for his fellows. The sense of self and 
 of society are essential forms of human nature which 
 will never disappear, although they are shown in various 
 guises and new forms in different periods, and combine 
 in constantly different ways. The history of man is the 
 history of these changes ; human evolution is their devel- 
 opment. It is not accurate to say that the personal inter- 
 est is immutable and unaffected by the modifying action 
 of history, for it follows the vicissitudes of feeling and the 
 development of tendencies which, from a blind and prim- 
 itive egoism, develop into one that is altruistic, as Spen- 
 cer says. Individuality is not destroyed but modified, 
 and therefore it is not absurd to admit the persistence 
 of some elements which express immediately its charac- 
 teristics. Political economy and law, growing out of 
 human nature, must consider personal interest power. 
 Political economy should be founded principally upon 
 the personal interest without forgetting other individual 
 tendencies and the social tendencies which exert an 
 influence upon wealth, as we have before said. 1 Private 
 law should be founded essentially upon the idea of 
 individual personality recognizing, however, the natural 
 bonds which it has with society. But it cannot be alto- 
 gether controlled by the social idea, for in that case 
 it would cease to be private. Socialism alone would sup- 
 press individuality in economics and law, losing sight 
 of human nature. It is not logical to look upon the tend- 
 encies to personal interest as immutable, for the collective 
 interest can be conceived of as having the same character. 
 Admitted that immutability means the permanence of 
 necessary marks by which one thing is distinguished from 
 another, we must conclude that social interest is likewise 
 immutable, preserving always, as it does, its own nature 
 and having at all times the general good as its object. 
 
 1 Cf. 140, 141, ante.
 
 ECONOMIC RELATIONS 455 
 
 As to the criticism which Loria makes of the two theories 
 of the second group, and especially of socialism, we should 
 observe that the first principle of this system is not really 
 placed in the technical instrumentality. Socialism has 
 revealed and even exaggerated the connection between 
 technical instrumentality and the form of economic 
 relations. It will not see that an imperfect technical 
 instrumentality can be associated with a superior eco- 
 nomic form, and it will not closely examine the reason 
 why, in the period of undeveloped instrumentalities, 
 there should have existed slavery, and wages; but it 
 is not right to deny that socialism is based on the 
 idea of a technical system and that it sought its base 
 in human nature. Socialism in all its phases has pro- 
 ceeded from the conception of man in the abstract and has 
 always been hostile to individual liberty. It has con- 
 sidered human nature abstractly, that is, from the side 
 of original capacities which are equal in all men, and from 
 its theoretical and final powers (so called by Romagnosi) , 
 and has not understood fully enough the value of the 
 acquired faculties and practical powers derived from 
 different characters of individuals or from diverse activi- 
 ties. These practical powers become by action the 
 final powers and represent a full process of individual- 
 ization in which all the native and artificial modality of 
 the individual arise as well as the differences growing out 
 of objective diversity. Socialism considers merely the 
 equal capacities of man and the common agents of a 
 sensible world, forgetting entirely the medial term of 
 practical powers, and therefore would substitute the 
 collective possession of the means of production in place 
 of private property. 
 
 276. Man is the Origin of Economic Relations. 
 Land cannot be the real beginning of economic rela- 
 tions, as Loria thinks, without inverting the factors of
 
 456 PREDIAL PROPERTY IN THE SOIL 
 
 production and the premises of the science of wealth. 
 Capital and natural forces are instrumentalities of pro- 
 duction, the one derivative, the other original; but both 
 presuppose man. Without man there would be no 
 capital and no land as a productive element. It would 
 have a physical existence merely and not economic. 
 Man is not a mere coefficient of production, but its sub- 
 ject, its first cause and limitation. Land cannot become 
 the moving cause save to the extent that man works 
 upon it and gives it value. Its evolution is not physical, 
 but economic; it moves as work modifies it and renders 
 it always more powerful for the satisfaction of human 
 needs. It is not true that of the three premises of 
 classical economy, the personal interest, the instinct of 
 procreation, and the limitation of the extent and pro- 
 ductivity of the earth, the first two are constant and 
 land alone variable, developing in a series of the digres- 
 sive steps. But personal interest changes according to its 
 various combinations with altruistic sentiment and gen- 
 eral interest. The instinct of procreation is more or less 
 modified by foreign obstacles and by the development of 
 intellectual faculties. If the constancy of personal 
 interest and of the instinct of procreation means that 
 man always desires his own good and tends to multiply, 
 there is reason also to retain the constancy of the third 
 premise because the limitation of the extent and pro- 
 ductivity of the earth will never fail. Natural law 
 forbids it. 1 The mutual conditions of the occupancy 
 and fecundity of the earth depend on man and do not 
 constitute a supreme principle. The same conception 
 of the freedom of land, on which Loria is so insistent, 
 includes essentially the relation of man as an individual 
 and in society. Land is free; but in respect to whom? 
 Demonstrated that the theory of the earth as the first 
 
 1 Cf. 144 ante.
 
 CONTRADICTION IN LORIA'S THEORY 457 
 
 cause of economic relations is false, it follows that it 
 cannot be the origin of the more complex social facts. 
 If this theory is not sufficient to explain the facts which 
 regard wealth, how can it explain social evolution? 
 That the economic factor in sociology is not absolutely 
 predominant will appear clearly in the discussion of 
 industrial property. 1 
 
 277. A Contradiction in Loria's Theory. Loria's 
 theory of free land contains a blending of two concep- 
 tions, for it appears on the one hand that he denies 
 entirely predial property, the origin and basis of capital- 
 istic and unproductive property, and on the other hand 
 he accepts the right of every man to occupy the extent 
 of cultivated ground which he can cultivate in that free 
 property in land, which the State must protect. We 
 cannot clearly see whether, after private property in 
 land is denied and ownership is attributed to the com- 
 munity, the usufruct will be the right of every man, 
 or whether there will remain a remnant of predial 
 property, a right to the amount of land necessary for 
 each man to obtain the means of sustenance by labor. 
 In both cases the theory is not new and is confused with 
 collectivism, or that form of socialism which fs the con- 
 sequence of the conception of property in land as the right 
 of all, realized by work. It does not disagree with either 
 doctrine on the question of State intervention, because 
 that can be based either on the total appropriation of 
 the land or on the limitation of its control according to 
 the needs of human beings and the labor of each. So 
 in the hypothesis of free land (or of free property in the 
 land, as Loria says) there is the phenomenon of rent or 
 of surplus, because there will always be a difference in 
 the cost of cultivation. To whom will the rent belong? 
 Will the State confiscate it by a tax which the grantee 
 
 l Cf. 293 et seq., post.
 
 458 PREDIAL PROPERTY IN THE SOIL 
 
 must pay, or will it go to the benefit of the labor-owner 
 or to the association? We understand that if the rent 
 goes to the benefit of the possessor or the association of 
 capital or of capital and labor, the principle, contrary 
 to that of free land, of land necessary to every man or 
 of land as the gift of God is implicitly admitted. This 
 contrary principle is the exclusive appropriation of the 
 common natural forces not derived from labor or capital. 
 If land is every man's, if it is not a creation of man, if 
 it should be free, how then can an individual or an 
 association take a surplus from that which is the gift of 
 God? How can the appropriation of the rent be justi- 
 fied, if the basis of free property in cultivated land is 
 labor from which the rent does not come? Loria says 
 that in the system in which everyone can and hardly 
 wants to occupy his piece of land and expend his labor 
 and capital thereon, property is not possible which 
 absorbs a great part of the product to the harm of the 
 workman ; that is, capitalistic property. The workman 
 will have a beneficial power of choice between the 
 possession of his own land and labor on that of another. 
 So Henry George puts forward the hypothesis of the 
 abundance of free farms and speaks of this alternative 
 offered to the workmen believing that in such circum- 
 stances the rent will go down and the wages will go up. 
 But despite Henry George, we can say that the alter- 
 native is not one of the best for the workmen because 
 capital is necessary to give value to land and it takes 
 time to reap its fruits. The observation can likewise 
 be applied to the theory of Loria which on this point 
 is not essentially different from that of Henry George. 
 It is manifest that capitalistic property by Loria means 
 the same as by Karl Marx ; that it is not the fruit of 
 work. According to Marx, property in land and in 
 all instrumentalities of production generates capitalistic
 
 CONTRADICTION IN LORIA'S THEORY 459 
 
 property, and therefore in his mind the suppression 
 of this kind of property includes not only land but the 
 means of production, as we will see in a following 
 chapter.
 
 460 PROPERTY IN FORESTS AND MINES 
 
 CHAPTER VII 
 PROPERTY IN FORESTS AND MINES 
 
 THE FUNCTIONS OF THE FORESTS. RIGHT OF DEFORESTA- 
 TION. ITS RESTRAINT AND THE REASONS THEREFOR. MINING 
 PROPERTY AND THE PHASES OF THE INDUSTRY. CRITICISMS 
 OF ARGUMENTS IN FAVOR OF THE OWNER OF THE SOIL. THE 
 DOCTRINE THAT ATTRIBUTES THE ORE TO THE DISCOVERER. 
 
 278. Forests and Mines are not Land. Law is 
 not an abstract formula but a concrete principle. 
 It is constituted and developed in life, assuming 
 various and diverse attitudes according to the nature 
 of the object to which it refers. If land should not be 
 confused with minerals and forests, it is evident that 
 the law applicable to property in land should not be 
 applied to the latter. 
 
 279. The Advantages of Forests. With this 
 premise, let us briefly state the particular functions 
 of a forest, which are four in number. In the first 
 place, a forest furnishes wood for civil and military 
 constructions and for the daily uses of the arts. It 
 prevents landslides, avalanches, snowslides, and the 
 washing away of the vegetable earth, and avoids the 
 evaporation of the rain water. It protects the soil 
 from the rays of the sun and keeps ample deposits of 
 water, moderates the wind, and keeps the air more 
 pure. Besides, we must consider that in the lumber 
 industry, labor and capital play a small part in com- 
 parison to the amount invested in agriculture. A 
 forest is fertilized by fallen leaves and it is perennial.
 
 PUBLIC CONTROL OF FORESTS 461 
 
 It seems as if nature wished to protect herself against 
 the arbitrary disposition of man. 
 
 280. Should There be Public Control of Forests ? 
 Now the special character and functions of forests 
 are more or less admitted by the representatives of all 
 the possible systems of forestry regulation, that is, by 
 those who are in favor of absolute freedom and by those 
 who are champions of control, general and constant or 
 partial and changeable in certain cases. The former 
 are firmly persuaded that the harmony of the social 
 interests and the interests of the owners of the forest 
 will be the natural effect of the free development of 
 the activity which is aimed at the production of a valu- 
 able asset, and that therefore the State should not 
 interfere. There does not seem to be any doubt that 
 these are actuated by the general presupposition that 
 economic order is reducible to a spontaneous uncon- 
 scious and instinctive coincidence of private inter- 
 ests for the good of all. But such a presupposition is 
 erroneous, as we have shown above. 1 Human interests 
 are not blind, natural forces, subject to shocks, pertur- 
 bations, and changes, but are ethical forces little depend- 
 ent upon freedom, the effective principle of history. 
 This implies the influence of nature on mind, but still 
 consists properly in a progressive series of victories al- 
 ways more important and decisive of mind over nature. 
 In such a process of emancipation, freedom shows, 
 to adopt the phrase of Vico, its divine essence or birth. 
 
 281. Restraint is Necessary in the Present State 
 of Development. In the argument of which we are 
 speaking, the profit of the owner is evidently opposed 
 to common interest. Let us take a society which has 
 need of the permanence of its woodland because of 
 the physical conditions of the country. The owner 
 
 l Cf. 272 ante.
 
 462 PROPERTY IN FORESTS AND MINES 
 
 of this woodland in obedience to the general need 
 should willingly restrict himself to cutting down a 
 few dead and dying trees and to repairing the dam- 
 age done by wind and snow. And if the wood is 
 capable of a large lumber production he and his 
 heirs should sponte sua calmly await the slow 
 rebuilding of their capital, always insecure, waiting 
 from sixty to a hundred and twenty years for the de- 
 velopment of a tree of fair size when an unforeseen 
 accident can destroy a huge amount of lumber. A 
 private citizen thus would be constrained to renounce 
 a quicker and greater return from his capital and in 
 place thereof undergo many burdens from which little 
 advantage comes to himself. Is it possible to imagine 
 all this? Are we by any chance in the happy times of 
 the normal conversion of self-interest into the heroics 
 or altruism, of which the followers of Comte speak? 
 Do we not need more artificial chains, or if there is a 
 reason for not wanting them, do we not need an economic 
 order founded on nature and, let us add, on "natura 
 medicatrice"? Can we disregard so openly the charac- 
 ter and tendencies of human individuality? 
 
 282. Restraint is Bad, but Often Necessary. Bec- 
 caria writes, in his celebrated lectures known under 
 the title of "Element! di Economia Publica," that 
 the control of an industry should be free and the 
 divers interests left to themselves and their natural 
 development, by which they tend to reach a union 
 and equilibrium; but he adds that coercive and legis- 
 lative discipline is necessary when we see that a private 
 interest will not or will only too late join with the public 
 interest, and where the discovery of fraud is slow and 
 remote. Moving from this principle and understanding 
 the discord of interests in the forest question, he becomes 
 the ardent champion of control, and fights the danger-
 
 RESTRAINT CONSERVATIVE 463 
 
 ous freedom of destruction. This liberty is also corn- 
 batted by Mengotti and Romagnosi. Mengotti holds 
 that the law should forbid not only criminal actions 
 but those which are imprudent and foolish, and by which 
 others are harmed and ruined. How can it be right 
 to set fire to one's own house, if the probable conse- 
 quence of that act is burning the next house or the whole 
 city? And if one cannot consent to leprosy, plague, and 
 hydrophobia being found in the public street, or an 
 owner of a property establishing a rope or rice factory 
 next door, it is right to forbid the owner of a forest 
 from destroying it or unsodding his land on steep moun- 
 tain sides to his own advantage. Romagnosi also does 
 not think that the principle of non-intervention, either 
 active or passive, should apply to avalanches and 
 snowslides, thinking that private love of gain should 
 be controlled for the good of the community through 
 the intervention of public authority. If you make 
 rules, he says, for canals, which are the property of 
 individuals, so that the streets be not flooded and ruined, 
 can you not with greater reason make rules against 
 landslides in mountainous countries which ruin at one 
 sweep the whole territory and subject it to destructive 
 floods? 
 
 283. The Restraint Should be Conservative. Public 
 control should not be determined by hypothetical 
 reasons or unproven opinions, but should be based 
 on facts fully demonstrated as dangerous to society, 
 since it is a question of limiting the free owner- 
 ship of an individual. Since the restraint depends upon 
 these facts, it is necessary that it be established to 
 hinder the damage which ordinarily comes in the course 
 of floods to agriculture, husbandry, geographical or 
 territorial stability by deforestation or unsodding. 
 That the forests contribute to the permanence and regu-
 
 464 PROPERTY IN FORESTS AND MINES 
 
 larity of the springs, so useful to agriculture and hus- 
 bandry, no one sance mentis can deny. Neither is there 
 anyone who can doubt the influence of the forest on 
 geographical permanence. Humboldt says that the trees 
 act on the abundance of the springs, not, as was believed 
 for a long time, by a particular attraction for the vapors 
 in the air, but because they protect the soil from the 
 direct action of the sun and diminish the evaporation 
 of rain water. One of the results of the destruction of 
 forests is that the beds of rivers are dry during part 
 of the year, and turn into torrents when the great 
 seasonal rains fall on the heights. When the grass and 
 roots disappear on the heights of the mountains, when the 
 moss is dried up, the rains, no longer retained in their 
 courses, sweep over the drenched fields and cause sudden 
 floods which devastate the countryside. The destruc- 
 tion of the woods, the absence of permanent springs, 
 and the frequency of torrents are three phenomena 
 closely connected. Marsh notes, in his book "Man and 
 Nature," that with the disappearance of the forests the 
 precipitation becomes irregular, and snow and spring 
 rains, no longer absorbed by a porous, spongy, vegetable 
 soil, scour the frozen surface and then pour through the 
 valleys towards the sea in place of saturating a portion 
 of retentive earth and giving it a supply of dampness 
 for the perennial springs. The earth, stripped of its 
 carpet of leaves, is crumbled and powdered by the plough, 
 since it is deprived of the small fibrous roots which hold 
 it together. It is dried up and turned to dust by the 
 sun and wind. The face of the earth is no longer a sponge 
 but dust; and the deluges, which the waters of heaven 
 pour on it, are precipitated along the slopes carrying in 
 suspension great quantities of earthy particles which 
 increase the mechanical force and erosive action of the 
 current. This quantity, reinforced by the sand and
 
 CONTROL OF FOREST LANDS 465 
 
 pebbles of the landslides, fills the beds of the streams, 
 forcing them into new channels and obstructing their 
 outlets. The little streams, lacking their primary and 
 regular supply and deprived of the protective shadows 
 of the woods, evaporate during the summer and change 
 into devastating torrents in the autumn and spring. 
 From such causes there is a constant destruction of the 
 highlands and a marked raising of the bottoms of the 
 rivers and lakes. Reclus, after observing that a thick 
 wood is the best protection against all kinds of snowslides, 
 notices that mankind disappears where the woods dis- 
 appear ; the axe of the woodsman no less than the sword 
 of the conqueror has destroyed and decimated entire 
 peoples. 
 
 284. Italian Writers Believe in the Control of Forest 
 Lands. The necessity of control to preserve the springs 
 and territorial substance is fully shown by Italian writers. 
 Mengotti, 1 for example, says that when nature is not 
 overcome, due to the imprudence of man, it reclothes itself 
 of its own free will with a covering of various leafy 
 plants on the heights, spurs, and flanks of the moun- 
 tains. This is surely the most efficacious means which 
 it can adopt for retarding and arresting rain and snow, 
 so that they cannot be precipitated all at once into the 
 valleys, producing instantaneous and headlong rivers. 
 A great forest holds an immense quantity of water with 
 its roots and stumps, its bark, branches, leaves, and 
 with all those marvelous means with which plants are 
 furnished. The density of the leaves, the cones of the 
 pines and the fir, the endless number of branches in- 
 creasing in size from the top of the trees downwards 
 from tier to tier and from storey to storey, the roughness 
 of the thick bark itself sometimes supplied with scales, 
 the crevices, the gummy and sticky sap all are suited 
 
 1 Cf. 279 ante.
 
 466 PROPERTY IN FORESTS AND MINES 
 
 to put obstacles in the way of the flow of the water. 
 Stoppani thinks that landslides are caused exclusively 
 by subterraneous infiltration and circulation of water. 
 Now woods in the first place hold together the loose 
 earth by the intersection of their roots, in the second 
 place the rain water is delayed in falling directly to the 
 ground, which it cannot do except slowly through such 
 a filter. In the other case it is natural that erosion 
 gains power. Messadaglia has learnt some of the un- 
 believable effects of deforestation through the obser- 
 vation and concrete study of corresponding localities. 
 Such, according to circumstances, are the washing away 
 of water-sheds, the suppression of springs, the formation 
 of torrents, the alteration in the course of the torrential 
 rains, and the rising of the river-beds. If it is a question 
 of stating the effects in determinate localities, you must 
 understand that one must give attentive consideration 
 to the place itself and the difficult comparison of it 
 with other places in similar and different conditions, 
 and with its prior state. Then from such a starting 
 place one should enlarge the argument by the sum of me- 
 teoric and hydrographic conditions in an extended terri- 
 tory. The question becomes at the root very intricate, 
 depending upon various local conditions. The solution 
 in such hypotheses is not fully ascertainable and much 
 less can it be raised to a general doctrine. Thus it is 
 not possible to determine positively the influence of 
 forests on the quantity and annual division of the rain- 
 fall without taking into account the proximity of vast 
 evaporating basins and the degree of temperature, the 
 prevailing winds, and the typographic structure of the 
 surface of the earth. It may also be possible that 
 the influence of the woods is affected by other factors. 
 As to the action of forest vegetation on the division of the 
 rain-water for the year or in general from one period to
 
 REGULATION OF CONTROL 467 
 
 another, it is necessary to look at other determining 
 causes, such as the temperature, winds, cosmic order of 
 the soil, and difference in geographical latitude. As to the 
 velocity of the flow, the condition of the soil, whether it 
 be wooded or bare, is a ruling factor ; the woods modify 
 the absorption and decrease the speed of streams, espe- 
 cially along the water-sheds, to a relatively greater 
 extent, the steeper the incline. In conclusion the geo- 
 metric action of the forests, that is, their influence on the 
 quantity and regulation of the rains, is only modifying, 
 secondary, and particular in respect to those other 
 causes which are called primary and general, because 
 they have relation to the fundamental condition of the 
 rain. Stronger and sometimes decisive is the action of 
 the forest in regard to infiltration, although here too we 
 must be on our guard against statements too universal 
 and absolute. 
 
 285. The Regulation of Control is Difficult. Ad- 
 mitted that for purposes of the regularity and conserva- 
 tion of the streams and of the territorial conformation, 
 control should be established over forests situated on 
 mountain sides, it is a question if it should be imposed 
 and have the same extent and same general form for 
 meteorological and hygienic reasons in woods situated 
 on plains. Humboldt believes that the forests operate as 
 refrigerators defending, as we have said, 1 the earth from 
 the raging heat of the sun, increasing growth of the 
 grass, and increasing with the multiplication of leaves 
 such growths as are burnt up by the sun. Arago affirms 
 that forests can in certain cases make the climate more 
 mild, and in others produce a contrary effect. Gay- 
 Lussac thinks that we cannot be positive about the real 
 influence of woods on the climate of a country and that 
 such a question is complicated and seems impossible or at 
 
 l Cf. 381 ante.
 
 468 PROPERTY IN FORESTS AND MINES 
 
 least most difficult of solution. Boussingault observes that 
 in Central America, in the same latitude, at the same 
 height above sea level, and under conditions geographi- 
 cally identical, the forests cool invariably the climate. 
 Becqueral cites that fact and explains it as Boussingault 
 did, teaching that the vast influence of forests on the cli- 
 mate depends on their extent, the height and nature of 
 the trees , the power of evaporation possessed by the leaves , 
 their facility in heating or cooling, and the inherent quali- 
 ties of the physical state of the soil and sub-soil. Forests 
 form a defense, he adds, against low winds ; such a defense 
 is naturally proportionate to the height of the trees. 
 We can point out that the wet air, containing miasmata, 
 loses them in crossing a forest. Rigaud de Lille shows that 
 there are certain regions in Italy where the interposition 
 of the defense of the trees keeps fevers away, while the 
 uncovered parts remain exposed to the infection. Marsh, 
 in his remarks, of great weight as always, about the effect 
 of deforestation in relation to meteorology, does not fail 
 to state the great uncertainty that there is, but adds that 
 hailstorms, almost always united with electric disturb- 
 ances, seem to be of greater frequency and intensity in 
 definite relation to the decrease of the forests. In such 
 a diversity of opinions, which in particular cases may all 
 be true, Messadaglia reaches the sensible conclusion 
 that we should consider the question of the thermomet- 
 ric influence of forests from a scientific point of view sub 
 judice. It is true that Arago, Gay-Lussac, Becqueral, 
 and Marsh are, as we have seen, very far from an 
 absolute and certain solution. As long as there is any 
 doubt, the wise legislator cannot create a general and fixed 
 control, on account of the influence of heat and cold, 
 but should bring it about by a series of examinations of 
 the particular regional conditions. He should conduct it 
 in such a case as he has conducted it in respect to the rice
 
 CONTROL NOT INDUSTRIAL 469 
 
 fields. He should, that is, leave a large margin to the 
 variable element of locality, where the control cannot 
 be special and changeable, if he wishes to accomplish his 
 purpose. 
 
 286. Control Should Not be Industrial. Not a few 
 believe that the control of forest land is necessary, no 
 matter where it is situated, for the protection of the 
 lumber industry. Now this view has had weight in 
 the laws from the XVI Ith Century onwards and seems 
 to have maintained itself in our days by the increasing 
 danger of the failure of wood for heating and building 
 as a consequence of the great deforestation. But we 
 do not think that the control founded on motives of 
 industrial protection is just. As we are open adversaries 
 of unbridled free will, we declare ourselves hostile to 
 excessive State control. We wish the State to interfere 
 only where it is manifest that individuals, working on 
 their own account, would disregard the correlation of 
 interests, which assures the long existence of society. 
 Now this condition does not exist and cannot exist in 
 relation to the production of lumber, because competition 
 and freedom, applied to an industry, are the only means of 
 obtaining the greatest production. Society will need lum- 
 ber, and the business sense of the private citizen will 
 supply this need by a sufficient and appropriate cultiva- 
 tion of the forests. The price of forest products increases 
 from day to day and constitutes a growing impulse to 
 forest industries besides being a guaranty of a settled 
 business. It is true that the movements of the lumber 
 market are not general and do not always follow the same 
 direction and depend often upon local and changeable 
 conditions, but it is none the less true that there is a not- 
 able increase in the price of forest products. To-day the 
 woodland is markedly decreased in almost all parts of 
 the world, and therefore its cultivation for exportation
 
 470 PROPERTY IN FORESTS AND MINES 
 
 cannot fail to be lucrative, although sometimes the 
 great expense of transportation and the competition 
 of other countries reduce the gains not a little. It is, 
 however, useful to observe that the control of forests 
 on plains once taken away, the expense of trans- 
 portation of wood is not in the last analysis as grave a 
 difficulty as it would be if the wood had to descend from 
 a mountain side. Let us imagine that with the system of 
 personal interest and of freedom there can still be a cer- 
 tain lack of lumber. Can there not, for example, be 
 introduced in the workshops materials which will take 
 the place of wood, as anthracite, lignite, or peat, whose 
 use could be made practical with but little expense and 
 a few practical lessons? Neither can it be opposed to such 
 ideas that it is not possible to satisfy great national inter- 
 est, as the public marine service, railroads, and telegraphs, 
 because abolishing the servitude of the "martellata," the 
 modern States rendered inalienable a part of their forests 
 and thus destined it to civil and military uses. It is 
 sometimes affirmed that such reservations are not suf- 
 ficient in certain occasions in the life of people, but it is 
 not thinkable that the remaining private woods, be they 
 within or without the national territory, cannot more or 
 less supply the hypothetical lack. 
 
 287. Control, Based on Physical Harm, Does not 
 Entail Indemnity. If it is true that the State, as 
 Beccaria teaches, should act in cases in which it 
 is seen that the private interests will never or will 
 too late harmonize with the public interest, it is 
 necessary to conclude that control based on the con- 
 sideration of economic order has no other logical 
 reason for existence. The constant and great pro- 
 vision of forest material, of which Marco Balbi, 
 a member of the Venetian Senate, speaks, should limit 
 forest property only to prevent the harm result-
 
 HISTORY OF MINING LAW 471 
 
 ing from deforestation to water courses, industries, 
 agriculture, to geographic conformation, and in certain 
 places to the health of the population. Every other 
 limitation being unnecessary would be a violation of 
 individual freedom in its relation to things. The neces- 
 sary and rational limitations can be composed without any 
 obligation of indemnity because it does not hinder the 
 owner's use thereof but merely forbids its abuse, as a 
 damage to the rights and interests of others. The control 
 is purely negative, created to hinder the owner acting in a 
 way harmful to society on his own land situated on 
 mountain sides by deforestation or unsodding and in 
 such terms of fact the conception of indemnity does 
 not correspond to any principle of law. 
 
 288. Special Conditions of Mining Require Special 
 Laws. It is indubitably true that mining law, founded on 
 the particular nature of this kind of extractive industry, 
 should follow in the phases and be modified according 
 to the development of the industry itself. When mines 
 were merely holes in the soil, the property in them was 
 considered as part of estate in the land, but when the 
 mineral needed deep caves, a network of tunnels, pits, 
 and galleries, it became little by little a property dis- 
 tinct from that of the super-soil. At first, when the 
 industry was not progressive, the Roman law gave the 
 mineral to the owner of the land; then when there had 
 been some development, especially in the marble quar- 
 ries, in the time of Constantine, it allowed the extrac- 
 tion of marble from another's territory. 
 
 289. History of Mining Law. In the age after 
 the fall of the Empire there arose clearly the same 
 tendency in the industry as in its law. There was 
 an epoch in which the industry was elementary and 
 entirely superficial. In such an epoch, the right of 
 the owner of the land controlled absolutely. When the
 
 472 PROPERTY IN FORESTS AND MINES 
 
 industry began to demand large capital, the owner of 
 the land recognized the freedom of the mine, keeping 
 the power not only to control its development but 
 also the right of entrance and supervision. Later 
 these rights belonged to the feudal lord; the owner 
 of the surface had his moiety in the output of the mine 
 besides certain other quota and proportion at the 
 mine's mouth. Regal power was substituted in the 
 place of the power of the lord; the mine was truly part 
 of the regalia; the State, which had eminent domain 
 over the entire territory, granted out the use of the mine 
 and directed its working and placed an impost on it. 
 The owner of the land in this period had the same 
 rights which he enjoyed through feudal legislation. 
 Then the industry was transformed, the modern mine, 
 a subterraneous world in which a whole population of 
 laborers is employed, was born; the freedom of the mine 
 began. The right to a mine was attributed to the dis- 
 coverer and contractor, with the obligation of holding 
 the owner of the land safe from harm. A State can 
 no longer exercise royal prerogatives; it does not take 
 part in mining as formerly, but determines by laws 
 and positive recognition the rights of those who are 
 interested therein, and intervenes to protect morals, 
 policy, justice, and civilization in its exploita- 
 tion. From such fugitive remarks on the historical 
 development of mining and its law, the notion of 
 the emancipation of mineral products from the soil 
 is clear. Now we must see if such a tendency, which 
 has been developing throughout history, conforms to 
 reason. 
 
 290. Objections to the Emancipation of Mineral Prop- 
 erty. The followers of the system which attributes the 
 mineral to the owner of the soil object in the first place 
 that the area covered by the subsoil is a simple geo-
 
 OBJECTIONS TO EMANCIPATION 473 
 
 metrical surface; that the tillable land, which is not 
 limited to the first strata of vegetable earth, belongs 
 to the agriculturists, and that the mineral is part of the 
 cultivatable soil. The answer to this objection is not 
 difficult. The surface is not separated from the subsoil, 
 and is not a plane with length and breadth but no 
 depth. When we speak of the surface, we mean as much 
 of the subsoil as can be useful to the owner and can 
 become material for his practical interest. We admit 
 the impossibility of separating absolutely the surface 
 and the subsoil, but it does not appear legally impossible 
 that one man should be the owner of the surface and the 
 first soil and another the owner of the cavities of the 
 second crust. Such a state of affairs can be brought 
 about by contract or will, also by the statutory regula- 
 tion which recognizes in the owner of the soil the control 
 of the mineral. On the other hand, we must remember 
 that the limits of the surface are not always those of the 
 minerals because the latter, according to the testimony 
 of geologists, are irregular and peculiar in extent, with 
 innumerable ramifications of veins. And science in its 
 turn contributes always more to the separation of 
 mineral property from the control of the soil, as becomes 
 evident from the various methods used in ancient and 
 modern mining: the ancient was shallow, and the modern 
 sometimes very deep. They oppose in the second place 
 the distinction of the two domains, on the ground 
 that no one has a right to enter the land of another 
 and that the owner of the land gets his mineral by 
 the right of occupancy. As to the first part of such 
 an objection we can note that the right of entering into 
 the land of another for such work and discovery could be 
 caused by a legal servitude established with equitable 
 compensation in favor of the owner of the soil. There 
 are, however, cases in which the search and discovery
 
 474 PROPERTY IN FORESTS AND MINES 
 
 could be made without having to enter the land, but 
 rather by exploring from one's own land under the other's 
 at a depth, for example, of a thousand feet. As to 
 the second part we can point out that the primitive or 
 derivative methods of acquisition presuppose always 
 knowledge and will. A mode of acquisition is a method 
 of "posse" and that power demands "velle" which in turn 
 demands the "nosse." How, therefore, can the owner 
 of the land occupy in a true sense of the word a mine 
 which he does not know of ? There is no rational 
 possibility of the control of the unknown or the undefined. 
 
 291. Title to Minerals is Not by Accession. Op- 
 ponents of the system of separation allege then the right 
 of accession as determined by the modern laws, that is, 
 in its widest sense, and the doctrine of treasure trove 
 to aid the owner of the soil. As to the theory of 
 accession, it takes no intelligence to see that the 
 mineral is not a fruit; it is not something self- 
 perpetuating. Neither is it found, as far as the use of 
 the soil is concerned a relation that every accession 
 must have with its principal. We can also see that 
 the value of the mineral much exceeds that of the 
 land, and so it is very permissible to doubt if the soil 
 be the principal. In respect to the theory of treasure 
 trove, we must point out that we can draw no strong 
 analogy to the question of minerals here, because the 
 treasure is personalty and the mineral is not, and because 
 the division into equal parts of the property in the 
 treasure is ordered by the statute only when it be found 
 by chance, but the mineral can be discovered and 
 usually is discovered not by chance, but by virtue of 
 constant study and patient experiment. 
 
 292. Title to Minerals Cannot be Proved by Roman 
 "Fictiones." Many invoke the authority of the Roman 
 Law, according to which the scholiasts say that the
 
 TITLE TO MINERALS 475 
 
 owner of the soil is the owner of a column of air to 
 heaven and of a column of earth to "infernus," but 
 such statements are a hyperbole invented by Gino da 
 Pistoia and have no foundation in the sources of 
 Roman law, which teaches different limitations of 
 the property right in regard to what is above 
 and below the soil. Justinian, for example, says that 
 the owner of a building cannot so build as to pre- 
 vent the wind reaching the thrashing floor of his 
 neighbor. A copper mine found in land after its sale 
 belonged to the finder. "Neminem nee vendere nee 
 excipere quod non sit et lapidicinas nullas esse nisi quae 
 appareant et caedantur," Labeo taught. Ulpian wrote 
 on the subject of usufruct: "Inde est quaesitum, an 
 lapidicinas vel cretifodinas vel aredifodinas ipse instituere 
 possit? Et puto etiam ipsum instituere posse si non agri 
 partem necessarium huic rei occupaturus est. Proinde 
 venas quoque lapidicinarum et huiusmodi metallorum 
 inquirere poterit. Ergo et auri et argenti et sulpheris et 
 aeris et ferri et caeterorum fodinas vel quas paterfamilias 
 instituit exercere poterit vel ipse instituere si nihil agri- 
 colturaenocebat." Constantine admitted the free right 
 to quarry marble, and there was recognized by the other 
 emperors a right to a tenth in favor of the owner of the 
 soil. In other words the miner could give indemnity 
 for harm and not recognize the right of the owner of 
 the surface. Rights for the Roman jurisconsults 
 extended only so far as they were useful; when the 
 utility was lacking the right ended. I can force my 
 neighbor to cut the branches of his tree which extend 
 over my land from a height of more than fifteen feet. 
 I can use my right if, in sinking the well in my land, I 
 interrupt a water course which supplies my neighbor, 
 but I cannot tap this course at my pleasure and waste 
 the water. The owner can follow the vein of metal
 
 476 PROPERTY IN FORESTS AND MINES 
 
 from his land and acquire property in it "jure occupa- 
 tionis," but not because of his property in the soil. 
 
 293. Property in the Air. There can be no 
 doubt that atmospheric space like the soil and sub- 
 soil is an object of private property, because the use 
 and enjoyment of the soil would not be possible 
 unless the owner had the right to enjoy the space 
 above. It is quite impossible to say that atmospheric 
 space is not substantial, is not a thing, and does not, 
 therefore, constitute material for property, because it is 
 a form of concrete space and as such has objective 
 reality which is useful and valuable. And it is inexact 
 to consider the atmosphere as a common object not sus- 
 ceptible to private ownership, because common objects 
 are incapable of exclusive ownership in their totality, but 
 not in their parts. The sea is a common object and yet 
 it is reducible to property in the parts near the shore. 
 
 294. Property should beLimited by Practical Interest. 
 Neither is it true that the subsoil, not lending itself 
 to common use, is a "res communis." It can rather be 
 regarded as a "res nullius," and as such is capable of 
 ownership. The general principle is this: Property in 
 the air and the subsoil is one with the property of the soil. 
 Whoever acquires the property in the soil acquires it in 
 the atmosphere above and the earth beneath. There 
 is no need of a special occupancy for either. But 
 property in the atmosphere and the subsoil is limited as 
 any other property by the needs of social coexistence 
 and the activity and the general interests of man. 
 Private ownership should work for the good of law 
 and is justified by that idea. This is not attained 
 when a claim is exorbitant, or contains elements of 
 power not necessary for its exercise, or does not accord 
 with the conception of the wise distribution of goods 
 and rational moderation therein, which Vico teaches.
 
 PROPERTY SHOULD BE LIMITED 477 
 
 This shows the social limit of private property, which 
 is the activity developing as a practical interest of 
 another human subject. The activity of man can- 
 not be separated from the good, the useful, and the 
 advantageous, as these things cannot be understood 
 without the activity of which they are the terms. 
 Ihering declares clearly the practical interest of the 
 owner of the soil in the column of air and subsoil. His 
 practical interest in the column of air is that no one 
 shall take away from him the air, light, or rain, hinder 
 him from building, or make him give up his position 
 on his land on account of pestilential odors, smoke, 
 and dust, but he has no right to stop birds or bal- 
 loons passing through the aerial space. The Roman 
 jurisconsults, who had an exquisite sense of the realities 
 of life, never exaggerated the right of the owner and 
 maintained it on the base of practical interests of which 
 they had an admirable intuition. Practical interest is 
 the limit also of the owner's right in the subsoil, and 
 therefore he has no right to hinder another from gain- 
 ing from the subsoil without harm to himself any utility 
 profitable to him. Such utility is not referable to the 
 actual continual and ordinary purpose of the land, to 
 its cultivation or regular use, and is without the sphere 
 of the practical interest of its owner. It is not reason- 
 able to consider that the possibility of a different en- 
 joyment is a practical interest, arguing from the present 
 state of technical and industrial means, because in such 
 an hypothesis the discoverer would only rarely have 
 the right to the minerals which, in the greater number of 
 cases, can be enjoyed by the owner of the soil if he takes 
 advantage of existing scientific and technical means. In 
 practical interests, thus defined, it is not the cause of the 
 discoverer which needs a broad interpretation, but rather 
 that of the owner of the soil. There is a strong presump-
 
 478 PROPERTY IN FORESTS AND MINES 
 
 tion that it is more just to give the former the ownership 
 of the mine. The mineral discovered cannot belong to 
 the owner of the soil, either by the theory of labor or 
 personality. According to the theory of labor the 
 property should be placed where the individual activity 
 lies and the owner of the soil who has not been active 
 cannot be the owner of the mine. It has been the activ- 
 ity of the discoverer, and to him the mineral should belong. 
 Starting out with the conception of individual person- 
 ality which develops in things and stamps on them its 
 mark, making them its own, the same conclusion is 
 reached, because the discoverer and not the owner of 
 the soil has been active in the mine. 
 
 295. Economics Favor the Freedom of the Mine. 
 As to the economic reasons in aid of the present 
 thesis one must see that Dunoyer, in his book "De la 
 Liberte du Travail," contradicts himself when he looks 
 upon mining as an industry separate and distinct 
 from agriculture and then attibutes it to the owner 
 of the soil. Sella, a competent authority, shows that the 
 cultivation of the mine demands a strict unity of con- 
 ception, and therefore the mine cannot be divided like 
 land. The mining industry encounters many finan- 
 cial difficulties in making deep tunnels where the prop- 
 erty is much scattered. With the increase of depth the 
 expenses increase; therefore from the larger mines, 
 conducted with intelligence and economy, there are not 
 as large returns as are offered by ordinary industries. 
 Let there be added that the pretension of the owner of the 
 soil to an aliquot share of the mineral lessens the depth 
 of the mine and has no regard for the future. Besides, 
 experience proves that the pretension of the owners of 
 the soil to be representatives of the State, the presump- 
 tion that their wealth is more staple, their small love of 
 progress and their fear of destroying the productivity
 
 FREEDOM OF THE MINE 479 
 
 of the soil hinder the development of the mineral 
 industry in countries in which the system of the inde- 
 pendence of mines is not recognized. Neither can we 
 hope that the greater part of these troubles would 
 disappear with the association of the mine owners, 
 because such associations meet great practical difficul- 
 ties, and it is inexpedient to create difficult conditions, 
 trusting to conquering them through the genius and 
 ability of individuals. From such ideas, which corre- 
 spond to the real state of affairs and the special condi- 
 tions of the development of the industry, comes the action 
 of the State at the present day. A State should remove 
 the obstacles to the industry, should promote the dis- 
 covery of minerals, should aid the industry by geo- 
 graphical descriptions, should create statutes to prohibit 
 the present generation from taking all the mineral, should 
 govern the employment of women and children in mines, 
 should establish school regulations, should limit the work- 
 ing day of laborers of this class, should enforce precau- 
 tions of safety and hygiene to avoid the deleterious 
 action of gases and explosions, should promote chari- 
 table and pensioning societies among the workmen, and 
 should facilitate the transportation of mineral products. 
 But it should not do more than protect the industry 
 and make technical rules. It should decide questions 
 of property in mines, but with the object of such 
 decision it should not create a property but merely 
 recognize and define it, as the decree of inheritance of 
 the Austrian Code recognizes and defines a preexisting 
 law.
 
 480 INDUSTRIAL PROPERTY 
 
 CHAFER VIII 
 INDUSTRIAL PROPERTY 
 
 THE MERCHANDISE OF LABOR AND ITS PRICE. WORK AS 
 PROPERTY. UNIONS AND STRIKES. THE INDUSTRIAL JURY. 
 THE OWERSHIP OF CAPITAL AND PROPERTY. COLLECTIVISM 
 AND MUTUALISM. THE THEORY OF MARX. CRITICISM OF COL- 
 LECTIVISM AND OF THE THEORY OF MARX. TRUSTS. 
 
 296. Industrial Property is Important. Industrial 
 property arises in manufacturing industries. It finds 
 its justification in the chief base of property, that 
 is, in the principle of personality. It deserves a special 
 study not only because of the great importance it has 
 acquired in modern times but because it is made the 
 object of grave objections and criticisms which funda- 
 mentally are aimed at private ownership in general. 
 Here, as in similar discussions, it is necessary to re- 
 member not a few difficult economic theories in order 
 to understand and examine the facts juristically. Law 
 is always a proportion, a rule, a measure which attaches 
 diversely according to the nature of the object to which 
 it is applied. The matter in our case is essentially 
 economic. 
 
 297. Fundamentally the Interests of Capital and 
 Labor are One. A manufacturing industry presupposes 
 labor and its instruments. The instruments of labor 
 are primitive and derivative ; the primitive are natural 
 forces, the derivative are comprehended by capital. 
 Between labor and capital there is not and cannot be 
 an original and natural opposition, because the former
 
 CAPITAL AND LABOR 481 
 
 is the capital of to-morrow, and the latter is the labor 
 of yesterday, as we have said more than once. 1 In 
 the abstract, therefore, labor which robs capital robs 
 itself, and if labor is the father of capital, capital in its 
 turn nurtures labor and becomes its patron and guide. 
 In concrete, the interest of him who demands labor 
 is to acquire it at the lowest price, and the interest 
 of him who offers it is to sell it as dear as he can. 
 There occurs, therefore, the same struggle as can be 
 seen in every active exchange between consumer and 
 producer, since one wants the lowest and the other 
 the highest price. Furthermore, the conditions of ex- 
 change can be good for one contracting party and bad 
 for the other. What causes the greatest harm to labor 
 depends not upon the egoism of the capitalists but 
 upon the poverty of the workman who, with a large 
 family to support, saves little or nothing. The com- 
 petition of those who offer labor reduces the price, 
 and the decrease in wages exerts a sinister influence 
 on the conditions of the workman. But the price of 
 labor differs from other sales in this: that the vendor of 
 labor is bound to his goods while the vendor of other 
 objects is separated from them. Whence it follows that 
 the price of labor touches the workman directly, in 
 that it restricts him if it decreases, and extends his 
 needs if it goes up. It diminishes or promotes the 
 development of his life and morals. In this sense 
 alone the workman is bound to his property in labor. 
 He does not become a means or a part of the person- 
 ality of the master, as was the ancient belief. Further- 
 more, the workman, at least as an individual without 
 coalition, cannot in crises withdraw the offer of labor 
 in order to keep the price up, because if he does not work 
 he dies of hunger. On the other hand the ordinary 
 l Cf. 262 ante.
 
 482 INDUSTRIAL PROPERTY 
 
 vendor in such an event lessens, suspends, and abandons 
 production without suffering therefrom. 
 
 298. Labor is Merchandise. Some writers on this 
 subject do not admit that labor is an object of ex- 
 change, alleging that it is an agent of production con- 
 sisting of human activity, and not a product susceptible 
 of accumulation. They hold that the hiring of labor 
 lacks the character of a true contract because the work- 
 man is forced to sell his labor if he does not wish to 
 starve, while the capitalist is free to employ the workman 
 or not. They have not considered that the conception 
 of an agent or factor of production in general is not repug- 
 nant to that of an object of exchange. In fact, both the 
 capital and the agent or factor of production are mer- 
 chandise. Labor is not properly a part of man but is the 
 exercise of his activity over the forces of nature regulated 
 by the laws of least resistance, the universal tendency of 
 entities to accomplish the greatest result with the least 
 expense. Man is not the instrument or coefficient of pro- 
 duction, but the subject and end. Nature is the object 
 and labor a living bond between man and the outside 
 world. Labor as the activity of the person is not really 
 merchandise. It becomes such, not in its potentiality 
 and internal extent, but as it develops and manifests it- 
 self in separate operations and. definite ends. Not the 
 entire personal activity, confusable with the person and 
 inalienable, becomes merchandise by the partial and tem- 
 porary exercise thereof. In this meaning labor has a 
 value of exchange. It is reducible to money and becomes 
 part of one's estate. Neither is labor, in one sense, alone 
 incapable of accumulation, because there are objects 
 which are in the same condition; for example, a fresh egg 
 or a strawberry, to which nobody denies the character 
 of merchandise. It is true that a capitalist is free not 
 to ask for the work, but only on condition that he does
 
 PRICE OF LABOR TWOFOLD 483 
 
 not employ his capital; if he wishes to make profits 
 from his wealth he must have workmen ; only the 
 capitalist can wait and take his leisure better than the 
 workman. 
 
 299. Price of Labor is Twofold, the Current and 
 Natural. The price of labor is twofold, current and 
 average. The current is determined by the offer and de- 
 mand; the average is a point toward which the oscilla- 
 tions of the other tend, and represents the tenor of life, 
 that is, the sum of satisfactions, among which is the 
 accumulation of capital to which the working class is 
 habituated and which it does not think it can renounce 
 without degradation. The tenor of life grows with time 
 and comprehends new advantages which at first the 
 workman did not think it possible to attain. The 
 current wage tends to become the average, not being 
 able to mount too high because of competition. Neither 
 can it descend below the absolutely necessary wage, 
 because the workman would not have means to live. 
 But it is not right to believe that an increase of 
 workmen necessarily produces a reduction of wages be- 
 cause such an increase can well be coincident with a 
 rapid development of the industry, in which case there 
 occurs the phenomenon of an increase of workmen and 
 wages. On the other hand it is undeniable that with 
 economic and civil progress the efficiency of moral re- 
 straints which lead to foresight and in which the intellec- 
 tual faculties are predominant, whose development is not 
 in direct ratio to the power of generation, is more empha- 
 sized . Statistics show that in the more progressive nation 
 there is also more wealth, greater population, and higher 
 prices. It is true that the price of goods has increased but 
 it is not less true that wages are higher than they were in 
 the past. The famous "iron-bound" law of wages by 
 which these tend to diminish to the simple expense of
 
 484 INDUSTRIAL PROPERTY 
 
 production of labor is not as iron-bound as Lassalle and 
 the later socialists say. The measure of prices is bound 
 up with the measure of production and the measure of 
 wages depends on the demand for work and the demand 
 for work depends upon the quantity of capital. The quan- 
 tity of capital depending on the accumulated production 
 of goods and the demand for them, the quantity of pro- 
 duction has its origin in the medial productivity of labor. 
 With increased production the wages should go up and 
 not down. The "iron-bound" law is such no longer in the 
 face of the present organization of unions, which not only 
 prevent the reduction of wages but even demand that 
 the workman be given the greatest amount possible 
 in the given economic situation. We must not forget 
 that the increased production is of greatest interest 
 both to the employer and the workman. The first 
 must understand that good wages sustain the physical 
 forces and awake intellectual qualities in the workmen, 
 resulting in better labor. The second should remem- 
 ber that to limit the production entails great harm upon 
 them, since with a decrease in the demand for work wages 
 go down. On the other hand, if the work is more produc- 
 tive, that is, more intense and rapid, production increases 
 and the demand for labor goes up. On the other hand, 
 the working day, becoming more intense, cannot fail to 
 be shortened. The increase in wages and the subsequent 
 amelioration of the conditions of the workmen are not- 
 ably accompanied by a general and marked increase in 
 production. The associations of workmen effectively aid 
 the raising of wages and are most useful when production 
 is tending to increase. When production is not increas- 
 ing an increase in wages is not possible, because there 
 is a minimum profit beyond which the capitalistic em- 
 ployer will not go. In these cases the unions do not 
 gain their object and do grave harm to the interests
 
 PROPERTY IN LABOR 485 
 
 of the workmen. And here, too, it is well to note that 
 the demand for a product is not always directly in pro- 
 portion to the demand for labor, as in the case where the 
 product is already made and in that of the ceasing or de- 
 creasing of the demand for some luxury and the begin- 
 ning or increase in the demand for some other. In this 
 last hypothesis capital leaves one industry and takes up 
 another, and one cannot say a priori whether work 
 is increased or not. 
 
 300. There is a Property in Labor. Work from 
 a juristic aspect is always property. It is a primi- 
 tive property, if considered in its potentiality as 
 the activity of a man tending to the production of 
 wealth, because a person is master of himself and his 
 capacities and relations. It is an acquired property in 
 the exercise of his acts in that it makes something of 
 a different nature from that of other salable articles. 
 Work has its title in the principle of the inviolability of 
 the person and his possessions; the contract for work 
 merits respect as every other contract in which the use 
 of property is brought into play. For if it is in good faith 
 and without breach of the freedom of contract, it is 
 valid. The economic law of supply and demand, which 
 determines the current price of labor, and the approach 
 of this to the average price show in the abstract; then 
 there is full knowledge and freedom of exchange, the 
 principle of justice. Justice means proportion, equality, 
 equation, a conception found in the economic laws 
 regarded in their ideality. In fact, the demand shows 
 the utility of a thing. The offer represents the power 
 of acquisition, and the point at which the two combine 
 is their centre of balance, their equality and equation. 
 We can see such a point in respect to labor. In 
 the case of a large offer of workmen, there is not a 
 bare living and the satisfaction of the most urgent needs
 
 486 INDUSTRIAL PROPERTY 
 
 which they want, but all the needs of life always 
 tend to increase. Of this, Turgot and even Ricardo 
 have, in their day, given a clear notion. Labor is always 
 property in every form of remunerative system, even 
 in the simplest division of products of hunting and 
 fishing by lot. Then come wages, the true transaction 
 between the workmen, who desire safety and immediate 
 pay, and the capitalist, who desires his time free. The 
 system of wages has two defects. It is founded on a 
 time system and is not payment according to the 
 quantity and quality of the labor. Thus it divides the 
 workman and the investor. Work, according to amount 
 done, possible in cases of uniform operation and of 
 divisible products, stimulates the activity of the work- 
 men to the advantage of the business. It is the most 
 perfect plan, but is applicable with little difficulty only 
 in those industries where the work has a great importance 
 in comparison with the fixed capital. The law should 
 recognize all the conditions and then should help and 
 promote the most suitable remunerative system. 
 
 301. Unions are Based on the Property Right in 
 Labor. From the conception of property in work we 
 come logically to the right of the workmen to unite in a 
 pacific manner not harmful to the freedom of others and 
 to act in concert in order to increase their wages. Strikes 
 and coalitions of workmen form a kind of rarification 
 of labor because the workmen, trusting to the common 
 right of association, withdraw the supply at once and, 
 stopping the sale in detail, await the time when this 
 course shall have raised their wages. The workmen in 
 this instance do what every merchant does to sell his 
 goods at the highest price to those who have need of 
 them. The "International Association of Workmen" 
 recognizes that strikes are contrary to economic prin- 
 ciples, increasing the antagonism between capital and
 
 HISTORY OF UNIONS 487 
 
 labor, but believes that during the existent organization 
 of society they are opportune means to save the pay of 
 the workmen from the effect of the tyranny of capital 
 and to incite the indigent classes to reform the laws 
 and social institutions. We should remember that the 
 "International" has a plan of new birth, attainable 
 through the famous social liquidation, which cannot be 
 obtained without inspiring the proletariat with hatred 
 against society; to be attained by raising agitations, 
 suffering, and misery, the fatal and only consequence 
 of strikes. In this the coalitions, whether they be 
 "trades-unions" or "gewerkvereine," differ from the 
 "International," because the unions have ordinarily no 
 philosophic or economic program of regeneration. Al- 
 though they struggle against capital, it is not to destroy 
 it and substitute artificial combinations, but merely to 
 ameliorate the conditions of the workmen. The means 
 possessed by the unions, without breach of law, are only 
 mutual help and coalition, the first defensive and the 
 second offensive. 
 
 302. History of Unions. A strike is one of the 
 results of the unions. A union cannot be found in 
 classical antiquity except as a commercial monopoly, 
 because, all labor being slave labor, wages took no 
 part in the arts and industries. But in the Middle 
 Ages when labor began to be emancipated, then 
 there arose a possibility of industrial coalitions, 
 to which the penalty of the Roman law for com- 
 mercial monopolies was applied, which made an 
 industry a part of the State and took away the deter- 
 mination of prices and wages from the decision of the 
 individuals. Then a new age dawned, and together with 
 the abolition of apprenticeship came the freedom of 
 labor, which ceased to be a governmental possession and 
 became a natural right. Freedom of labor entailed the
 
 488 INDUSTRIAL PROPERTY 
 
 juristic recognition of the union which could no longer 
 be considered as criminal. But the French Revolution 
 was afraid of every kind of association because it feared 
 to see the guilds and old privileges reestablished. 
 It did not, therefore, look upon coalition as a right. 
 From that time on the crime of which we speak was not 
 based upon the usurpation of a public power, but on the 
 union or coalition. This fear, however, disappeared 
 entirely in the course of years and was changed to trust 
 and confidence, because the State on the one hand at 
 last understood that the progress of time had rendered 
 the reinstatement of guilds impossible, and on the 
 other, turned the spirit of association to its great 
 advantage. This conception has eliminated the act we 
 are discussing from the category of crimes in almost all 
 the civilized nations. 
 
 303. Unions are Legal. A union is not illegal, 
 because the act of temporary association of many 
 people is not criminal in itself; neither can the right 
 to use such means to raise the rate of wages be 
 illegal. In order to hold the contrary it would be 
 necessary to show that every coalition, however tem- 
 porary, is against the law and that there is no prop- 
 erty in labor, which would imply a complete denial of 
 all modern civil progress. But, say the enemies of the 
 freedom of union, the true foundation of such a crime 
 does not consist in its elements studied apart, but in 
 their sum and consequence, which can be reduced gen- 
 erally to moral duress, the disturbance of the laws of 
 offer and demand, and public disorder. It is curious 
 that among those who reason thus is Proudhon, 
 who affirms that a union is an association for violence 
 against social liberty and is a violation of the economic 
 protection of the State. The alleged duress, however, 
 intended as a limitation of another's rights, does not
 
 TENDENCY TO ILLEGAL ACTS 489 
 
 exist, as there is nothing forbidden to the employer 
 that is allowed the operatives. Liberty is complete 
 when by the side of the coalition of laborers we can place 
 that of the masters. In this case we can see a true 
 equality of rights. To the other objection we cannot 
 say that free coalition disturbs the regular flux and reflux, 
 offer and demand, for this is not true, as we will see. 
 The workmen's leagues operate either on population or 
 capital to bring about a raise in wages. If they operate 
 on population they should try to restrain the offer of 
 work; but this is not practicable without threats, vio- 
 lence, or fraud, and on this score is within the rigor of the 
 law. The trades unions and the "Sessions of the Inter- 
 national" give us examples of such excesses. If these 
 leagues influence invested capital, which can be in- 
 creased without stopping or retarding the development 
 of industry, they do not break the law of prices, 
 which tend to approximate distributive justice. But 
 the conditions of the workmen always affect the circu- 
 lating capital, promoting an increase in wages by the 
 increased prices of other things. In this case the 
 increase of wages falls upon the consumer and the eco- 
 nomic law is in no ways broken, because cheapness is 
 desirable when it grows from a less expenditure of force 
 and not from a stint of wages. Furthermore, if in the 
 determination of prices there are other causes, separate 
 from the principle of supply and demand, a coalition can 
 gain control of them ; an example of such causes foreign 
 to supply and demand is custom. We must note that 
 when the workmen's league does not gain its object, 
 the law of offer and demand is not altered, but resists 
 its unreasonable claim, as Del Guidice said in his book, 
 "Coalizioni Industrial!." 
 
 304. Unions cannot be Forbidden because of their 
 Tendency to Illegal Acts. As to disorder, let us recog-
 
 490 INDUSTRIAL PROPERTY 
 
 nize that strikes too often produce fatal consequences 
 for all, especially if wide in extent and long in 
 duration. It is only necessary to read the descrip- 
 tion of some strikes in England, especially one of those 
 which was followed by a "lockout," to feel a deep 
 abhorrence of them. But confessing the damage de- 
 rivative from strikes, we must consider whether a 
 union can be declared illegal on the single ground of its 
 possible harm. It appears to us that the question when 
 put in such terms is easily answered, because it is clear 
 that the penalty must always refer to a violation of 
 law, which does not exist in the workmen's league itself, 
 as we have briefly shown. Neither can we continue to 
 call a strike, unaccompanied by violence, a breach of the 
 peace, but must reserve this (as the criminal lawyers 
 teach us) for threats and violence. If intimidation ac- 
 companies a strike and entails the use of force against 
 those who will not strike or against the employers, the 
 criminal law should be invoked. Every workman who 
 is guilty of fraud should also be punished. But to our 
 way of thinking molestation and obstacles, without the 
 characteristics of real violence, which are used as a kind 
 of indirect force, should not be punishable, since it is not 
 possible to determine such facts accurately, and since it 
 can thus render the freedom of coalition illusory. Penal 
 action should always be taken by the government to 
 avoid a state of intimidation which often accompanies 
 a contest between manufacturers and their employees, 
 who are sure of impunity from violence because of their 
 great numbers. Law should also deprive of legal 
 effect any penal clause enacted between an employer 
 and his workmen to assure the observance of agree- 
 ments of a union, because everybody has the right 
 to leave an association when he believes it contrary 
 to his interest.
 
 INDUSTRIAL JURISDICTION 491 
 
 305. Industrial Jurisprudence. Freedom of asso- 
 ciation is intimately connected with industrial juris- 
 prudence. There is no reason why employers and 
 operatives should not have their disputes decided 
 by technical judges and not by the regular courts, 
 which are bound by unavoidably slow rules of pro- 
 cedure and the habit of strictly legal criticism. The 
 disputes are often due to mistakes or momentary exas- 
 peration; whence it follows that they can be amicably 
 settled by a committee. It can constitute a court of 
 special jurisdiction, it can exercise a summary and 
 executive jurisdiction in causes which are brought 
 before it by the consent of the parties without affecting 
 the jurisdiction of the regular courts, or it can act 
 with only advisory powers, leaving a right of appeal 
 to the regular judiciary. 
 
 306. Divisions of Industrial Jurisdiction. The com- 
 mittee may be elected by the workmen and the 
 employers, but it should be presided over by a dis- 
 interested person, possibly chosen by the government. 
 It is a good plan to elect the workmen's representative 
 by the employers and the employers representative 
 by the workmen in order to establish a closer relation 
 between the two classes. It is necessary, however, 
 to distinguish the character of the disputes, as it may 
 relate to the execution of a contract already concluded 
 between the employer and his workmen, or to objects 
 and conditions of an economic and not juristic char- 
 acter. Arbitration and mediation are more suited for 
 the settlement of the former than the latter. A judgment 
 is always unfair and tyrannical which, with juris- 
 diction only over a particular subject-matter, im- 
 poses general conditions which demand the fullest 
 knowledge of the circumstances. The principle of liberty 
 of work and capital is fundamentally denied by this
 
 492 INDUSTRIAL PROPERTY 
 
 kind of judgment, which is equivalent to the legal deter- 
 mination of prices, wages, and interests, and suffers from 
 the same defects. Industrial arbitration will undergo 
 a large development in the future if approved by the 
 larger associations of workmen, and recognized by the 
 statutes. In this case the committee has great authority, 
 because their office of settling controversies of an economic 
 nature is the effect of common confidence and trust. Here 
 is the substantial difference between the "Prudhommes" 
 of France, who conciliate and define particular con- 
 troversies, and the English Courts of Chancery, that 
 conciliate and define questions of common interest. 
 
 307. Profit is Like Rent. Profit is the remunera- 
 tion of capital as wages are the compensation of 
 mechanical labor. Profit is the part which belongs to 
 him who invests in an industry, carried on at his risk, 
 a capital that is his or that he has borrowed. It is 
 the rent of the capitalistic employer. Wages and 
 interest are determined by precedent agreements; not 
 so the profit. Workmen and lenders of the money can- 
 not be forced to make restitution of their wages or 
 interest. An employer, when the undertaking fails, 
 cannot break his contracts with third parties, alleging 
 a right to remuneration for his capital. Profit is also 
 a property because it is the price of the work of him 
 who founds and directs a business. It pays him for the 
 sacrifice of his savings and is a compensation for his 
 risk. In it we find the effect of the action of the person 
 over animated things, by which ownership is created. 
 Profit is current or average. The first is determined 
 by the laws of supply and demand of the capitalistic 
 employers; the second is the sufficient payment for the 
 labor and risks of those who have rendered the carrying on 
 of the industry possible by the investment of their money. 
 Interest and profit are justified by the principle of social
 
 PROFIT LIKE RENT 493 
 
 utility. Rae says that interest is just because capital is 
 socially useful and because the owner of capital in apply- 
 ing it to productive purposes renders society a service, 
 the value of which is measurable by its social utility. The 
 service which the capitalist renders to production is as 
 indispensable as that rendered by the workmen; the 
 justice of interest is based on the solid foundation on 
 which the justice of wages is based. Workmen cannot 
 produce by labor alone without materials and instruments 
 precisely as the capitalist cannot produce without labor. 
 And capitalists have need of a recompense which will 
 induce them to save precisely as workmen have need 
 of it in order to come to a resolution to work. The 
 employer exercises a social function inasmuch as he 
 unites and directs the elements of production, thereby 
 satisfying the needs of the consumer. He offers means 
 for work, he creates relations with foreign countries, 
 he foresees all the events which can occur to hinder 
 production, and he provides for them in time. His 
 services to society are invaluable. What could the 
 State do in his place? In public administration the 
 spirit of enterprise and the keen interest to economize 
 are lacking. Capitalists are more adventurous and more 
 economic directors than public officials. With public 
 control the numbers of parasites and intermediary agents 
 against whom the socialists fight would be manifoldly 
 increased. The production would be less and slower, 
 the saving would greatly diminish, because no one 
 makes self-sacrifices on another's behalf. 
 
 308. The Socialists and Private Property. Modern 
 socialists attack private property in capital vigorously 
 and think its profits criminal and unjust. Among 
 them Marx distinguishes himself particularly, because 
 he has made the most powerful and coherent criticism 
 of capital. Lassalle differs from Marx in his economic
 
 494 INDUSTRIAL PROPERTY 
 
 principles, considering the question as it concerns the 
 conditions in Germany, while Marx treats the dis- 
 cussion from a higher, that is, from an international 
 point of view. Marx and Lassalle differ greatly from 
 the French socialists, for example, Proudhon and Blanc, 
 not falling into those superficial abstract theories of 
 imaginary idealism so slightly reinforced by scientific 
 discovery. German socialism is eminently logical, based 
 upon the latest analysis of facts and doctrine, and armed 
 by all the means of erudition and modern science. Marx 
 belongs to the Hegelian Left and follows Feuerbach, 
 who transforms absolute idealism into humanism, 
 eliminating every transcendental principle and all the 
 fantastic projections of the human essence. The human- 
 ism of Feuerbach is materialistic because man, who is 
 the beginning of everything, is nothing in his essence but 
 body. Principles are gods and must follow man's des- 
 tiny, allowing him absolute freedom, since they are his 
 creations. The dissolution of theology into anthro- 
 pology is united in the sphere of thought with the 
 transformation of monarchy into democracy in the 
 field of politics. The State should be humanized; it 
 is a means for the well-being of everyone. There is 
 nothing above man, neither superhuman beings nor 
 consecrated persons, nor is there a person who is more 
 than man or one who is less. Humanism cannot lend 
 itself to collectivism because only social man is the 
 true human essence, and the individual must bow before 
 him, as Rae notes. Marx regards humanism as the be^ 
 ginning of the political and industrial reorganization 
 which will be attained when the universal proletariat 
 becomes an irresistible force. Lassalle, too, is Hegelian, 
 and is disposed like Marx to recognize the law of natural 
 historical evolution of which the French Utopists have 
 not the slightest notion.
 
 THEORY OF SOCIALISM 495 
 
 309. The Old Theory of Socialism. The theory 
 of Marx, with which we are now concerned, is closely 
 connected with collectivism and mutualism. The col- 
 lectivists and mutualists say that in the same manner 
 as in the natural world inorganic matter (mechani- 
 cal, physical, or chemical) is the determinate base 
 of organic matter (vegetable, animal, or cerebral), so in 
 the social world which used to be regarded as the last 
 cognitive step of the material world, the development of 
 economic questions has always been and continues to 
 be a determinate base for all systems of philosophy, 
 religion, sociology, and politics. According to them, 
 society to-day is divided into two classes: the one is that 
 of the oppressors, who live like Sybarites, having rights 
 and not duties; the other is formed of the oppressed, of 
 the miserable proletariat, destined to constant labor 
 without recompense or legitimate hope of it, surrounded 
 only by restraints, called, for politeness, duties. The 
 revolutions of a century ago have substituted the power 
 of gold for the power of chivalry, and for the old feudal 
 aristocracy the new, but not less iniquitous oppression 
 of the middle class. We must destroy the tyranny of 
 capital and guarantee the triumph of labor, an end un- 
 obtainable without the universal union of agricultural 
 and industrial associations, which union will undertake 
 to fight the existing slavery, whose stronghold is matri- 
 mony and law. It will proclaim anarchy and recon- 
 struct the society on two new foundations, collective 
 property in the instruments of labor, and the absolute 
 and general equivalence of functions. Arable land, 
 forests, quarries, mines, canals, ships, railroads, tele- 
 graphs, factories, and mills will be subject to a collective 
 control because instruments of economic activity. The 
 equivalence of functions will be brought into existence 
 with the exchange of the products regulated by the cost
 
 496 INDUSTRIAL PROPERTY 
 
 and the value of the material needed for their produc- 
 tion, because services, being equivalent, must necessarily 
 be gratuitous. There will be no difference in profit 
 between one producer and another, and the principle 
 of one for all and all for one will be the rule. But in 
 order to attain the accomplishment of the social liqui- 
 dation there will have to be many unions and grave and 
 extensive strikes over the abolition of national character, 
 which will lead to the universal unity of workmen. On 
 the other hand, obligatory free education, complete and 
 common for both sexes, is intended to. promote the 
 equality of nature between individuals. Such was the 
 program of the socialist of a year or so ago. 
 
 310. The Socialists Theory of To-day. Schaffle, in 
 a book of to-day, "Die Quintessenz der Socialmus," 
 shows the secondary differences between school and 
 school and party and party. Everyone knows that 
 in the bosom of socialism itself there are discordant 
 varieties as in every other system. The object of 
 the whole socialistic movement is the fundamental 
 transformation of the actual social economy. The 
 mother idea is collective property in place of private 
 property in all means of production; that is, farms, 
 forests, factories, and mills. The other principal ob- 
 jects are the social organization of labor in place of the 
 capitalistic community, the creation of corporate or- 
 ganism -and a social direction of production, the public 
 division of common labor on the base of collective prop- 
 erty in the materials of social work, a redivision of 
 products of every kind among the laborers with regard 
 to the quantity and value of each one's activity. 
 According to this idealistic theory, the producers would 
 be laborers and not capitalists, because the capital 
 would become collective and the producers would work 
 using the means belonging to society, and there would
 
 KARL MARX 497 
 
 be no more employers and employees, but rather pro- 
 fessional workers with equal duties towards society, 
 their paymaster. In consequence, there would be no 
 more private income in the form of surplus values, but 
 instead remunerations due exclusively to labor measured 
 by quantity and quality. Those who render society 
 services of the greatest utility, such as judges, those em- 
 ployed in public service, professors, artists, and thinkers, 
 would receive a part of the national production in pro- 
 portion to the function of their work. The means 
 necessary to each kind of production would be deter- 
 mined by a directive committee. Social industry would 
 be regulated by such determination of public organisms. 
 The occasional decrease or excess of products would 
 demand a reserve in anticipation thereof or a deposit 
 in social storehouses. 
 
 311. Karl Marx. In his book "Das Kapital," 
 Marx starts out with economic principles of the most 
 abstract economists. Galiani said that work is the 
 only cause which gives value to anything, that value 
 is measured by the expenditure of work, and that 
 by its duration the value of a product is equal to 
 the food consumed by the workmen during the time 
 of production. Beccaria says that value is meas- 
 ured by work. Later Adam Smith and Ricardo ad- 
 mitted that the sole source and measure of value is 
 work. Locke and almost all the economists have placed 
 the origin of property in labor. Bastiat shows that 
 service is interchangeable with service. Now Marx pre- 
 supposes all these conceptions of the orthodox economic 
 school as undeniably true, and sees the consequences 
 with the greatest logic. The fundamental postulate 
 on which his system is based is: In every sale there is 
 a value of use and exchange. The value of use regards 
 the needs which the product is destined to satisfy; the
 
 498 INDUSTRIAL PROPERTY 
 
 value of exchange corresponds to the interchange of 
 products, to their power of acquisition. In primitive 
 society the value of use prevails; in a society which has 
 advanced to the basis of a division of labor the value 
 of exchange predominates. Labor creates the value of 
 exchange, which, however, contains also some value 
 of use. The labor or use of human force, which accom- 
 panies the consumption of nervous, muscular, and cere- 
 bral substance, is what is common to all value, and is 
 the measure of value of exchange. Labor, the creator of 
 value, is what is socially necessary and what society 
 must pay for. With such notions Marx carries out the 
 theories of Adam Smith and Ricardo. If the steam 
 spinning jenny produces in the same number of hours 
 thirty times as much silk as a weaver, he must work a 
 month to make the silk which will only have the value 
 of one day's labor. Labor is measured easily in terms 
 of labor by its length, and therefore if the space of 
 time is equal in two occupations it should have an equal 
 reward. But to whom by right does this value of 
 exchange belong? He who produces and sells wants 
 his recompense. He claims that by his industry he has 
 created a real excess of value. The real excess of value 
 is the effect of labor for it has the virtue of creating a 
 value of exchange greater than the object alone has. 
 Capital does not create value; the factory reproduces 
 the value it destroys; a machine produces no value, but 
 transmits its own by labor to objects which it makes. 
 If there was not a real excess of value generated by labor 
 no one would take the trouble to work. But that which 
 for the independent workmen is a constant source of 
 new value gives no reward to the wage-earner. His 
 property in his labor is stolen from him. The capitalist 
 makes his value out of his employees, paying for the 
 labor the simple expenses of production, which are less
 
 DIFFERENT CLASSES 499 
 
 than its utility. The capitalist gives the workmen the 
 price of their useful forces, whose value is determined 
 by its intensity and function and is equal to the cost 
 of the food necessary for the life of the laborers and 
 their families, and he takes all the surplus value. He 
 gains six hours out of the twelve hours of the work- 
 men's labor, for they should work only six hours to earn 
 wages sufficient for their support. The workmen sell 
 their energy for a Mexican dollar in order to produce 
 a continuous work of six hours, and for such a price 
 give labor for twelve hours. In this lies the secret of 
 the extraordinary increase in capital, with the injustice 
 and tyranny from which society cannot escape except 
 by the abolition of private property and the creation 
 of a collectivism, based on the division of labor. 
 
 312. Communism is a Mark of the Existence of 
 Extremely Different Classes. Communism and socialism 
 are always born from the appearance of extreme 
 opulence and poverty, from the failure of a large middle 
 class, from the wide gulf between capital and labor, by 
 which it appears easy to get rich in inverse ratio to 
 personal merit, from the alteration in feelings of justice 
 caused by continual revolutions, and from the claims 
 of lower classes aroused by democratic constitutions. 
 Roscher, in "System der Finanzwissenschaft," shows 
 that the prevalence of communism and socialism in 
 the times of Greek decadence, of corruption in the 
 Roman Republic in the periods of reform, and even 
 to-day, is the result of such conditions. It is necessary, 
 therefore, to scan closely the particular characters of 
 the Utopias of our times, to reflect on the great knowl- 
 edge of rights attained by an incomplete study and on 
 the rapidity of propaganda to-day. And, on the other 
 hand, we must also remember that the forbidden and 
 tyrannical guilds have not separated the interest of the
 
 500 INDUSTRIAL PROPERTY 
 
 worker from that of the employer, however much they 
 have been the cause of the infinite evils of to-day and 
 the slowness of the development of trade. Here labor 
 has prevailed, depending more upon the excellence of 
 the art than on fortune, being advanced from disciple 
 to the grade of master. A corporation given a free 
 foot for the benefit of human beings, great production 
 results and two distinct classes appear, one furnishing 
 the means of production, that is, the capital, the other 
 deprived sometimes of necessities even and deep in want. 
 It is natural that such a noticeable difference between 
 the two classes should cause jealousies and finally bring 
 about a reaction more or less violent. Such reaction 
 is the origin of modern socialism, whose errors are ex- 
 plicable as all similar errors as due to the unsatisfied 
 needs of humanity. 
 
 313. Modern Collectivism Considers Economics the 
 Base of Civilization. The principle with which the 
 modern collectivists are inspired is not true because 
 they confuse the conception of the simple condition of 
 development with the more complex conception of a 
 determinate base or incentive. Let us recognize with 
 Littre and with the others that economic well-being 
 is the necessary condition for scientific religious and 
 political progress, but not that it is the motive of such 
 progress, which is thought, that has been busy in history 
 passing from mute times to the mythical age, and from 
 the days of the heroes to the time in which the mind 
 considers everything for itself. Certainly the stomach 
 is an indispensable organ, a prerequisite of mental 
 and spiritual feelings, but it is not the cause of the 
 sublime flights of genius or deeds of heroism. That 
 the spirit is the motive power of the economy of peoples 
 and States is proved by considering the influence of 
 knowledge, faith, and politics on labor. Science is
 
 CAPITAL AND LABOR 501 
 
 substituting the activity of nature for the labor of man 
 more and more, and celebrates, therefore, every day 
 the discoveries of important processes; numerous 
 victories of mind over matter. Christian faith revealed 
 the principle of individual personality which, together 
 with the conception of society, is clearly the foundation 
 of economic science. Now there is no doubt that for 
 the greater number of collectivists and socialists, if not 
 for all of them (for there are some of 'them Christians), 
 Buddhism, in which every activity is absorbed and 
 everyone is annulled, should be placed before Chris- 
 tianity. Did not the celebrated Bakunim in his letter 
 written to Massini at the instigation of the Central 
 Committee of London say, accepting the accusation of 
 atheism and materialism, that we are poor individuals 
 who, like waves, rise to be quickly scattered in the 
 immense ocean of collective life? Finally we must 
 reflect that political liberty, taking root in the customs 
 of a people and extending its sphere, cannot fail to 
 generate economic liberty, although the development of 
 one is not contemporaneous with that of the other, as 
 we have seen by the recent experiences of the American 
 and French laws. We must remember that America, 
 which has a democratic form of government, has adopted 
 protection in foreign commerce, and that France of 
 the Second Empire, if it was liberal in commerce, was 
 autocratic in politics. 
 
 314. Capital and Labor are Not Fundamentally 
 Antagonistic. The war to the knife begun against 
 capital in the name of the disinherited cause of labor 
 is absurd, because originally capital and labor were 
 one. And it is obvious that with the multiplication 
 of capital, labor is increased, and with the diminution 
 of the former the latter is destroyed. On the other 
 hand the grave evil produced by the present system
 
 502 INDUSTRIAL PROPERTY 
 
 of the distribution of wealth, by which the employers 
 grow richer and richer while the workmen continue to 
 live in poverty, can be eliminated by the diffusion of 
 the capital and property. Let this be made in such 
 a way that the workmen be trained to become pos- 
 sessors of the capital, and the question of pauperism 
 will have begun its journey towards a distant solution. 
 The cooperative method aims at this purpose in various 
 ways but within clear limits, and is animadverted against 
 by the collectivists, who say that cooperation is the 
 mother of petty tyrannies and false sympathies, and is 
 worse than the present capitalism. Cooperation, they 
 say, creates a new class with one foot in the camp of 
 the middle class and the other in that of the proletariat. 
 But the cooperative system in industrial enterprises 
 has not had a fair trial. There are certainly great 
 benefits to be drawn from the system of participa- 
 tion, a system which is still in its infancy. There are 
 methods of making the acquisition of property easy, to 
 which one must add those which increase the opportunity 
 of industrial investments for the working classes, through 
 facilities, means of credit, saving, and insurance suited 
 to their means. The advantages of a larger extension of 
 the sane and efficacious incorporation of unions or helping 
 societies, with the object of disproving the statement 
 that the workman, if he does not wish to starve, is always 
 obliged to yield to the demands of the employer, are too 
 important to be denied. The sums deposited in saving 
 funds, collected by unions, and wasted for drink and in 
 poor domestic economy show that not a few workmen 
 possess the means with which to begin their own emanci- 
 pation, if a good opportunity were offered them of using 
 their money to advantage in productive enterprises, as 
 Rae points out. There is, too, the experiment of reform 
 by wise social legislation which makes for the improve-
 
 PRESENT SYSTEM 503 
 
 ment and emancipation of the lower classes. These 
 reforms reduce the cost of living and look to the 
 increase of productive capacity, the conservation of the 
 workmen's physical forces, and to fosteringsuch foresight 
 as is possible in these classes. They are based always on 
 the principle that the State's mission is to complete, 
 aid, and save the deficient activity of the individual 
 without, however, substituting its initiative for theirs. 
 Its duty is always to guard the liberty of the weak. The 
 crises and vicissitudes of labor can be foreseen by a 
 good system of insurance which is also the subject of 
 social legislation. 
 
 315. Present System is Not so Black as it is Painted. 
 The socialists exaggerate the evils of the present indus- 
 trial system when they affirm that it constantly produces 
 tremendous crises, with perpetual excess of the laboring 
 population, by the rapidity of technical transformation 
 and the headlong changes in commercial relations. Ex- 
 perience has shown that machinery has employed more 
 hands than it has rendered idle and that with increased 
 production the demand for labor has increased likewise. 
 Commercial and financial crises are more frequent now, 
 but on the other hand they are less grave and violent, espe- 
 cially in those nations that en joy free trade, than those of 
 the past century. The danger of rash and pure specula- 
 tion can always be reduced by the organization of good 
 offices of statistics, which the socialists reasonably and 
 opportunely demand. The greater extension of private 
 property and the development of personal liberty are the 
 two great factors in modern progress. Nor has it been 
 shown by any advocate of socialism that private property 
 has not increased and accelerated production. It is 
 impossible to maintain seriously that the administra- 
 tion of the State is more interested and acute than private 
 enterprise and that the lessened responsibility of the
 
 504 INDUSTRIAL PROPERTY 
 
 workman, sure of his position and future, can produce 
 better results. Lassalle declares that if socialism does 
 not increase production it is not economically justifi- 
 able (this is certainly true), and there is reason to 
 believe that the nature of socialism is such that it 
 can ever bring about the result desired by Lassalle 
 and the economists, who with one voice say that the 
 preferable system is that under which personalty, 
 realty, and wealth in general give the largest prod- 
 uct and nourish the greatest number of men. This 
 has always been one of private property which contains 
 the most powerful incentive and gives the greatest 
 energy to production. Neither has it been shown that 
 socialism would be favorable to the other factor in prog- 
 ress, that is, to the principle of individual liberty, but 
 it has been proved that rather the contrary would result, 
 should the socialistic industrial policy become active and 
 develop the authority of public administration, to which 
 the entire duty of directing and organizing collective 
 labor would be entrusted. Schaffle, a socialist, writes 
 that the definite victory or defeat of socialism depends 
 upon the possibility of an agreement between the organ- 
 ization of production and individualistic principles. If 
 such an agreement cannot be made socialism will be de- 
 feated. Socialism, he says, will conquer onlybyadmitting 
 that each individual should take part in the labor for his 
 own private interests as actively as he does in the pres- 
 ent system, by recognizing that each man should suffer 
 the penalty of his fault or neglect and should be graded ac- 
 cording to his merit, and by directing the numerous forces 
 of labor in such away as torenderit more productive, not 
 by force, but through personal interests. Schaffle adds 
 that he is convinced that socialism can so harmonize with 
 liberty, but he confesses that now it does not show the nec- 
 essary guaranties for bringing about such an agreement.
 
 SOCIALISM NOT PROGRESS 505 
 
 And in fact it seems to us that socialism will never be 
 able to offer such guaranties, if its essence is what Schaffle 
 has described. How can socialism ever be conciliated 
 with the principle of personal liberty if it is founded on 
 the substitution of collective for private property, the 
 organization of production, the public division of labor, 
 and the distribution of collective products of all kinds 
 among the laborers? Socialism for its love of equality 
 sacrifices liberty, the source of difference and inequality. 
 One word in conclusion: if socialism is correctly denned 
 by Schaffle it becomes essentially irreconcilable with the 
 principle of individual personality. If it is something 
 else, let us be told what manner of thing it is and of 
 what it consists, and we will see how it can be in accord 
 with this principle. 
 
 316. Socialism and Progress. Socialists and col- 
 lectivists base much on a vague and indefinite notion 
 of progress, which is motion. Movement, says Galileo, 
 cannot be without a substance, without the inheritance 
 in its subject, whence it is that motion is always 
 determined by the nature of the subject moved. With 
 this warning it is clear that progress cannot be under- 
 stood except as regulated by the things which progress, 
 nor can we grasp an historical movement of man which 
 does not take into consideration the greater senti- 
 ments and rational impulses of man which influence 
 lim. Aristotle stated that there are two causes which 
 urge men to desire, the sense of ownership and the feel- 
 ing of affection, and that without property neither life 
 nor a good life is possible. The progress of modern col- 
 
 :tivists is of such a kind, because it draws away from 
 religion and nationality and the principle of individ- 
 ualism which it considers a barbarous and egoistical 
 notion. To deny God and religion because the one is 
 worshiped and the other invoked by the whole official
 
 506 INDUSTRIAL PROPERTY 
 
 world, officers, aristocracy, and all the privileged classes, 
 by bondholders and business men, politicians high and 
 low, by all State officials, policemen, and street cleaners, 
 by priests and clergy, and dissenters, is the same (Maz- 
 zini said in his letter to the Italians against the "Interna- 
 tional") as to deny the air because it is full of the 
 deadly germs of disease. True faith should not be 
 eschewed because much of the worship accorded God 
 is hypocritical. The thought, then, of substituting a 
 general autonomy for the nation is a reminiscence 
 of the infantile life of the people who developed from 
 a state of communism into nations. Eliminating 
 nationality, one cannot easily reach that spirit of 
 general fraternity in the various social aggregations 
 towards which all projects of reform are aimed and 
 all efforts of the socialists directed. The theoretical 
 and practical mind does not come to the greater 
 universals except by passing through a series of les- 
 ser tmiversals. Socialism, placing itself in the sphere 
 of the more ample universals and conquering the na- 
 tional phase, faces the fact that one people would be the 
 owners of the land in which nature has accumulated its 
 gifts, and another would be kept in barren region. Is 
 not land the common inheritance of humanity? Is not 
 occupation as unjust between one people and another as 
 between man and man? Do not violence and fraud 
 enter into the acquisitions by nations as well as in those 
 of private persons? 
 
 317. Society is Not a Natural Organism. The 
 conception of the ethical organism is in itself con- 
 crete because it contains the social person or the whole, 
 while the part must be considered as a conscious subject. 
 Such conception is born in a time of maturity and repre- 
 sents the harmony between two opposite elements for 
 a long time in enmity, the one political, and the other
 
 MARX'S THEORY 507 
 
 individual. At first the State was predominant and the 
 individual had no value in himself. Then he prevailed 
 and the State, reduced to a conventional reality, became 
 a simple means for safeguarding the individual. Now 
 collectivism and mutualism take a retrograde step, bring- 
 ing back the old pagan idea of the absorbing community, 
 the perfect image of a natural organism in which a part 
 is a simple means having no individuality. The old idea 
 is advanced by modern socialists clothed in forms more 
 industrial than political, presenting itself to their eyes 
 as the natural distributer of labor, which innovation is 
 understood without difficulty when we remember that for 
 the followers of the system in discussion economics are 
 the determining base of scientific, religious, and political 
 development. In such system the freedom of the indi- 
 vidual is conceived of in an abstract and general manner, 
 that is, without his natural differences entirely independ- 
 ent of the matter to which it refers. But freedom so 
 generalized and isolated cannot be upheld, cannot fail 
 to impede the logical deduction of the famous de facto 
 equality (if in the moral sphere surely in the economic) 
 of the absurd collective ownership of the instruments of 
 labor and of the not less erroneous absolute and uni- 
 versal equivalence of functions. 
 
 318. Criticism of Marx's Theory. The principal 
 error of Marx depends upon the theories of Galiani, 
 Adam Smith, and Ricardo, that value depends only 
 on work. Utility is a factor as well. To produce 
 a given temperature in winter, we have to use more 
 coal than in summer, and if the quantity of labor 
 is the same in the two seasons, the money value of coal 
 in the winter is higher. In a day's hunting, says Laveleye, 
 in his book "Socialisme Contemporaine," the force and 
 duration of the work are equal in killing a doe and a fox, 
 but the first will furnish nourishment for five days, while
 
 508 INDUSTRIAL PROPERTY 
 
 the latter will only be sufficient for one, whence it follows 
 that the doe with the greater utility is worth more than 
 the fox. That utility is an undeniable element of value 
 is shown in Marx's own theory of work socially necessary. 
 The weaver, for example, can make in a month the quan- 
 tity of silk that a steam weaver makes in a day. The 
 buyer will give the workman who has labored for a month 
 the price which he would pay the owner of the steam 
 weaver, because he pays the laborer not for the force used 
 in a month, but for the service rendered, and he pays him 
 in proportion to the utility produced. Galiani saw these 
 two factors of value and calls them rarity and utility, 
 meaning by rarity that which we moderns call power of 
 acquisition. He exaggerated the efficacy of both, be- 
 cause he admits value should develop in perfect propor- 
 tion with rarity and utility. Now it is not true that the 
 price of products (which is their value in money) increases 
 step by step as the demand increases (which corresponds 
 to utility) and diminishes step by step as the off er increases 
 (that corresponds to rarity) , because the price is influenced 
 in various ways according to the diversity of products, 
 sentiments, judgments, desires, and fears. Marx has 
 not followed Galiani in this doctrine but has accepted 
 its conceptions in treating of average value, reducing 
 one the measure of value of exchange to labor, and 
 has therefore fallen into error. Products cost not only 
 the labor which is spent on them, but also the conduct of 
 the person who either abstains from the unproductive 
 use of wealth at his disposition, or deliberately prefers 
 results more distant to immediate results. We have seen 
 that the theory of Galiani, Adam Smith, Ricardo, and 
 Marx cannot be applied to many important economic 
 phenomena. A general rise of wages is the result of the 
 value of the product, into which labor enters in great 
 proportion, in relation to capital; in such a case there is
 
 MARX'S THEORY 509 
 
 increase of value not preceded by any augmentation of 
 the quantity of labor necessary to production. If the 
 principle of Marx were true the products which demand 
 a longer and more burdensome work would have the 
 greater value. This, however, is not true in reality. In 
 fact the opposite is often true. A porter is paid less than 
 a teacher, and yet the porter works a greater number of 
 hours in a much more burdensome employment. A min- 
 ister of state gets more than a teacher, and yet he has more 
 time for preparation and training. It is not the length 
 of the work nor the time spent in preparation which 
 causes the difference in reward, but it is the different so- 
 cial utility of the service. Admitting the principle of 
 Marx, we cannot account for the existence of industries 
 in which there is a fixed capital. These should give a 
 profit less than that of other industries which have a cap- 
 ital made almost entirely of wages, since the value in- 
 creases in direct ratio to the quantity of labor expended. 
 But experience shows that this is not always true. A capi- 
 talist does not give the workmen all the value of the prod- 
 uct since he must pay interest on his capital and rent on 
 his land, and since he must receive a profit from his ac- 
 tivity, sacrifices, and for the risks which he runs. If the 
 workmen were capitalists then things would go differently 
 and there would be no reason for quarrels and lawsuits, 
 but there has always been and there will continue to be 
 a claim on part of the workmen's time in favor of him 
 who gives the things necessary to production, because 
 rent is natural and interest is an indispensable and not 
 irrational fact. Suppose, says Von Sybel, that a manu- 
 facturer, during normal conditions in which the other 
 contractors paid wages of a dollar, one fine day paid two 
 dollars. This, according to Marx, would be right, because 
 the manufacturer would have justly paid for twelve hours' 
 work. But now a manufacturer desires to redouble the
 
 510 INDUSTRIAL PROPERTY 
 
 wages because he has seen a propitious change in his pros- 
 pects and does not want to lose his workmen. In this 
 hypothesis, if the possibility comes true, the manufac- 
 turer would be enriched not through the work of his men 
 but by his intelligence and the outcome of events. 
 Surplus value is almost a consequence of such intelli- 
 gence and of the variations of price. Marx is wrong in 
 recognizing an excessive and absorbing importance in 
 mechanical labor, and in considering the instrument as 
 the motive power and giving it the appearance of a para- 
 site, while he himself writes that the capitalists make 
 production possible by coordinating and directing its 
 forces. He falls also into another error because he 
 believes that wages are simply what serves to keep the 
 workman alive, an error we will criticize in the next 
 paragraph. 
 
 319. Marx's Presuppositions are Untrue. The 
 theory of Marx is founded on hypotheses accepted 
 by his followers as facts already demonstrated and about 
 which there can be no doubt, but these hypotheses are 
 questionable enough because they do not correspond to 
 reality. The first hypothesis lies in considering that a 
 day's work includes twelve hours, while it appears in cer- 
 tain recent official reports that it is ten hours and in 
 some industries is restricted to nine or even to eight. The 
 second hypothesis, even further from the truth, is that 
 a workman gains always in six hours' work enough for 
 the support of himself and his family. The third repre- 
 sents the workman as resigned not to gain more than is 
 strictly necessary, being disposed to give twelve hours' 
 work to the contractor who only pays him for six. We 
 need only state such suppositions to see that they are 
 arbitrary. 
 
 320. Property in both Capital and Labor. From 
 this long analysis it appears that property in capital
 
 CAPITAL AND LABOR 511 
 
 and profit is equally as legitimate as that of work and 
 its recompense. Property in capital and freedom of 
 association and industry come from the right of the em- 
 ployers to unite and agree among themselves. The union 
 of manufacturers not accompanied by fraud, threats, or 
 violence is not criminal, as likewise the coalition and 
 strikes of workmen are legal. In our day, besides the 
 coalition of workmen for the question of wages, there are 
 associations to limit production and keep up the prices. 
 Such a coalition has come to be called "kartell" in Ger- 
 many, "cartel" or "syndicate" in France, a "ring" or 
 "trust" in England, and a "pool" or "corner" in America. 
 They are of various types, depending upon whether they 
 regulate the quantity of production in a given time for 
 every participant, or whether they fix a minimum price of 
 a product to be observed by every member of the union, 
 assign a given radius of sale, or distribute the production 
 among the members of the trust in such a way that none 
 has a want or superfluity of commissions. All these kinds 
 are legitimate consequences of the property in capital 
 and of free association and they do not in the least pre- 
 suppose fraud or violence. Cannot the producer of his 
 own will limit his production and make agreements with 
 other producers about the price and place where he will 
 sell, that is, enter into a league or fusion of commercial 
 societies? There is here the exercise of the right similar 
 to that which the workmen have to form their union, and 
 the State cannot fail to recognize it if it wishes to be just 
 to all. There will be harm done the consumer in such 
 cases, since he is obliged to pay more for his product, 
 but he must remember that such trusts prevent the ruin 
 of important national industries, and that therefore 
 they are helpful to the workmen. If the workman as a 
 consumer loses to a certain extent, he gains as a producer.
 
 512 COMMERCIAL PROPERTY 
 
 CHAPTER IX 
 
 COMMERCIAL PROPERTY. THE RIGHT OF 
 AN AUTHOR OR INVENTOR 
 
 THE CONCEPTION OF COMMERCIAL PROPERTY. FREEDOM OF 
 EXCHANGE. COMPETITION. PRIMITIVE NOTION OF TRADE. 
 THE RIGHT OF THE AUTHOR BEFORE AND AFTER THE INVEN- 
 TION OF PRINTING: ITS BASIS AND ITS CHARACTER. THE 
 RIGHT OF THE INVENTOR. 
 
 321. Definition of Commercial Property. Commer- 
 cial property is the child of commercial industry. It 
 is of its nature a go-between, because with trade, ex- 
 change, and transportation, it makes the relations 
 easy between producers and consumers, based on their 
 purpose of money-making and their chances of gain 
 and risk of loss. Commerce is domestic and foreign, 
 depending upon whether it is complete within a country 
 or not. It is distributive as far as it consists in the 
 purchase and sale, wholesale or retail, of things acquired 
 for sale. It concerns transportation and storage if it 
 brings to the consumers of one place the products of 
 distant countries or saves for days of want objects 
 bought in times of abundance. It includes all alienable 
 goods of any kind which are material for commercial 
 speculation. In this category are all forms of personalty, 
 chattels, money and checks, and other incorporeal things 
 such as the credit and the good-will of a business. Realty 
 also can be included if it is an object of speculation. In 
 all cases, the goods by becoming commercial, acquire 
 a new value, which must belong to him who adds his
 
 FREEDOM OF TRADE 513 
 
 labor to that of the producer and to him who invests and 
 risks his capital. Commerce frees the producer and 
 consumer of the work of coming directly together. It 
 saves them no little loss of time, anticipates capital, 
 provides transportation, preserves the products, runs 
 the risk of not selling, for one cause or another, and acts 
 as intermediary. Commercial property, therefore, is justi- 
 fied by the same principle of personality which is the 
 foundation of all kinds of ownership. 
 
 322. Freedom of Trade. Admit the right of prop- 
 erty and the freedom of labor, and the logical conse- 
 quence is freedom of trade or competition. Clearly 
 the owner of anything has the right to exchange and 
 re-exchange it as best he can so long as he has full 
 control over it. If an individual can choose his trade 
 or profession and exercise one or more, work with whom 
 he pleases, how he pleases, and when it seems best 
 to him, others are surely free to follow identical lines 
 and compete. Romagnosi is right in saying that 
 exchange is an undeniable principle of private and 
 public law; that this is a principle of private law is 
 without question. It is thus placed with the right of 
 property and shows in a very clear manner as its logical 
 effect. Turgot, before Romagnosi, discovered and 
 stated this truth. Free trade is a principle of modern 
 public law because it is founded on the territorial divi- 
 sion of labor among the nations, avoiding the wasting 
 of their productive forces. It is the cause of an increase 
 and perfection of products, whose price it lowers. It 
 encourages competition, increases knowledge, multi- 
 plies the relations between men, makes the more distant 
 interests safe, and is a sign of peace and brotherhood. 
 It is necessary, however, not to stop with such abstract 
 considerations ; we must study it concretely. The pure, 
 extreme theory of free trade is set forth in the manuals
 
 514 COMMERCIAL PROPERTY 
 
 of political economy and is not listened to by new writers 
 because it supposes as true in fact two conceptions 
 which are not always so, and confuses simple abstract 
 tendencies with reality. This theory starts out with two 
 premises, the unity and cosmopolitanism of merchan- 
 dise, without keeping in mind the events which can affect 
 the simple elements which compete in the world's com- 
 merce, and the hypothesis that the workmen are the 
 owners. Universal welfare can sometimes be obtained 
 with the ruin of one or more nations, but these nations 
 have the right and duty of providing for their own safety, 
 especially if they have in themselves initial conditions 
 for the favorable development of some industries which 
 could destroy foreign competition. On the other hand, 
 if free trade helps the workers in their character of 
 consumers it can harm them deeply as workmen. The 
 loss will be felt by them in a noticeable manner because 
 ordinarily they are not owners and do not enjoy the 
 advantage of free trade in proportion to the damage, 
 which can, in certain cases, be done to them by its 
 adoption. We must, therefore, temper this principle 
 with the particular condition of the national industry, 
 and proceed slowly. Commercial treaties, easily re- 
 voked, better than general tariffs, make for the estab- 
 lishment of control and the gradual adoption of the 
 principle, leaving to consular conventions the care of 
 realizing the freedom of commerce in respect to the 
 exercise of an industry, profession, or foreign trade. 
 This freedom once recognized, it is clear that we should 
 condemn the old grants of monopolies to trading com- 
 panies, the old regulations, and all that which stopped 
 free circulation, such as the provincial customhouses, 
 toll-gates, prices fixed by law, etc. 
 
 323. Right to Compete. The competition of an indi- 
 vidual is always a right although it does harm to others
 
 HISTORY OF COMMERCIAL LAW 515 
 
 who follow the same trade. It is, an undeniable maxim 
 of law that no one can do another harm by exercising his 
 own rational or legal powers. The law of the right of 
 competition, therefore, does not and must not bring 
 harm. At that point there arises a duty of indemnifica- 
 tion because there occurs a private wrong which, under 
 the form of a legal right, is harmful to a proprietary in- 
 terest. In such a case the private wrong assumes the 
 general name of unfair competition, as the lawyers 
 say. Competition is fair and recognized if anyone uses 
 the legitimate means at his disposal to attract a greater 
 number of customers. It becomes unfair if he resorts to 
 mislabeling or adulteration. Various are the ways and 
 means of unfair competition. There is the public 
 crying down through pamphlets and prospectuses of the 
 other's goods, the taking of another's name, reputa- 
 tion, sign, or trade-mark. All of these represent per- 
 suasive force exercised by merchants on customers. 
 There are also cases of unfair competition by the breach 
 of a contractual relation by which one man obligates 
 himself not to compete with another, or the violation 
 of trade secrets obtained by a workman of the factory 
 where he has learned them. These kinds of unfair com- 
 petition are methods harming the credit and reputa- 
 tion, the "achalandage" of the French and Belgium 
 writers, which has great economic value, and consti- 
 tutes a true commercial property in that it is alienable 
 and the material of money making. Names, signs, 
 and trade-marks are referable to the "achalandage," 
 representing the worth of the manufacturer and mer- 
 chant, and form a distinct commercial and industrial 
 property. 
 
 324. History of Commercial Law. We cannot 
 fail to be struck with wonder when we compare 
 the modern notion of commerce and commercial prop-
 
 516 COMMERCIAL PROPERTY 
 
 erty with the primitive forms outlined by Cognetti 
 De Martis in his "Forme Primitive nell' Evoluzione 
 Economica." From the stories of trustworthy ex- 
 plorers, we find that there are savage peoples who 
 lack a conception of exchange, in that they take 
 what is offered them and do not understand that they 
 should give anything in return. Primitive man, like a 
 child, desires everything and tries to grab what pleases 
 him, because he is selfish and controlled by strong 
 impulses. And it is only after a long period of de- 
 velopment that he can accustom himself to a system 
 of exchange. At the beginning of such a system, the 
 selfishness and rapacity of the savage is transformed into 
 bad faith and trickery. The fact that foreign traders are 
 considered enemies increases this bad faith. Exchange 
 is first silent, taking place in neutral land where the 
 contractors without seeing or speaking to each other 
 come, go, place, increase, and diminish the merchandise 
 and thus determine the " quid pro quo." Then appoint- 
 ments are made and continuous and permanent markets 
 in which custom controls are constituted in neutral 
 lands. The authority of the chiefs is absolute over the 
 contractors. After the market comes the phase of 
 peddling merchants and that of caravans, to which 
 succeed naval expeditions and commercial enterprises 
 such as were tried and carried out by the Phoenicians. 
 The Greeks and Romans despised work, which they 
 left to the slaves, believing leisure was the condition 
 of life for a citizen who took part in the government of 
 the Commonwealth. The arts even were condemned by 
 Zenophon, Plato, Aristotle, and Cicero. The Greeks 
 and Romans for the same reason abhorred trade and 
 tried, at least at the beginning, to withdraw the State 
 from the influence of foreign commerce. This tendency 
 is shown by the habits and customs predominant in
 
 
 THE RIGHT OF INVENTION 517 
 
 primitive times. In fact, foreign commerce alters 
 custom and the law of the fathers and influential 
 men, and seems to destroy society from its very base. 
 In those times commercial law was not separate from 
 the civil. The ancient civil law, like the Roman, con- 
 tained some rules for commercial affairs, and regulated 
 commercial property. Then came the first primitive 
 legislative synthesis. In the Middle Ages the old 
 statutes were given new significance and new com- 
 mercial forms were created. For example, limited 
 partnerships and cheques were invented, and bills of 
 exchange, partnerships, contracts, and the law of 
 agency were enlarged and defined. At first these 
 relations, which later became statutory, were ruled 
 by custom. They were a subject of profound study 
 by the school of Strsecha, Casaregis, and Anzaldo. 
 Codification made its first appearance in France with 
 the "Ordinance Generale" of 1673, and with the Marine 
 Orders of 1681. New commercial codes and new special 
 laws, taking account of the great development of personal 
 property in all its phases and of the limited commercia- 
 bility of realty, extended and reinforced the protection of 
 the property which was derived from the "commutatio 
 mercium," and were based on the conception of the free- 
 dom of commercial combination and exchange. Modern 
 legislation before the recent return to the older plan 
 was almost entirely freed from those prejudices which 
 lent weight to the system of the balance of trade, 
 protection, the colonial system, the granting of monopo- 
 lies. There was a tendency to become uniform in com- 
 mercial more than in any other part of law, because the 
 interests of trade are confused and interlaced in a 
 manner that prohibits the national factor. 
 
 325. The Right of Invention or Discovery. Coming 
 to the right of an author or inventor, we must remem-
 
 518 COMMERCIAL PROPERTY 
 
 ber first that before the invention of printing an 
 author had no financial interest distinct from that of 
 the owner of the product, and therefore there was no 
 need for a special legal protection, as Del Giudice says 
 in "Enciclopedia." The difficulties of the reproduction 
 of a manuscript were great, and the trade in books was 
 small. With the introduction of printing reproduction 
 became easy and the trade in books was greatly in- 
 creased, consequently a special protection appeared 
 that from the first controlled the privilege of re-editing 
 and reprinting. In the XVII I th Century all privileges 
 struggled for existence, and among them that of copy- 
 right. As there are no particular rules on this sub- 
 ject in the Roman law or statutes, recourse had to 
 be had to the common base of all rights of property. 
 The right of an author or inventor is the right of liter- 
 ary, artistic, and industrial property; thus it is held 
 in the works of philosophers, Diderot, Fichte, Hegel, 
 and Schopenhauer, and of the jurists and by the French 
 statutes. Certainly, in books, works of art, discov- 
 eries of new combinations and new industrial processes, 
 we must recognize an element which is general and an 
 element which is particular. The first lies in the ideas, 
 in the truths which belong to every man ; every author 
 or inventor assimilates thoughts accumulated through- 
 out centuries which form the collective patrimony 
 of the human mind. The second consists in the re- 
 search and intellectual activity of him who makes a 
 new elaboration of general ideas, creating a form which 
 before had no existence. This form may be expressed in 
 print, in silk, in marble, in design, in sound, in a combina- 
 tion or process, and marks the true boundaries of 
 the right of him who has devoted his labor to it. It is 
 just that society admit and protect the new labor, 
 recognizing the right of an author or inventor, but this
 
 AN ECONOMIC RIGHT 519 
 
 right should not prejudice the interest of humanity 
 because the more it progresses the more the new ideas 
 and new discoveries, by being diffused, become means 
 at the disposal of all those who wish to profit thereby. 
 
 326. Such a Right is Economic. It is objected 
 that law should not forcibly create openings for men 
 who try to sell their books and inventions upon con- 
 ditions of their own. Once a book or invention is 
 sold, the purchaser has full right over it and the ven- 
 dor has no right to exercise any restraints. But, 
 upon reflection, such considerations cannot have much 
 weight, as in fact they are only weighty with ordi- 
 nary producers who may be unfortunate in not selling 
 their property, but who in such a case at least retain 
 possession of it. This is not true of authors and inventors 
 who can be dispossessed by the first printing press or manu- 
 factory. We can observe that in the industrial products 
 the value lies entirely in the object made, and there- 
 fore the common protection given to property is suffi- 
 cient, while in the spiritual production the material is a 
 simple sign of ideas and of little value, so that the pro- 
 tection of the property in the material is not a sufficient 
 protection. A special protection is needed. Society, 
 therefore, must assure the author the exclusive 
 right of reproduction and sale and the inventor the 
 exclusive use of his invention. It is not true that 
 when one sells a copy of a book the buyer can re- 
 print it on his own account, because this would be 
 contrary to the rights of the author and would make 
 his own that special utility of value which belongs to 
 another without doing anything to gain it. With 
 the purchase of a book one acquires no other right 
 than that to read, study, lend, and give it away, 
 obtain from it all possible intellectual profit, and even 
 burn it if one wants.
 
 520 COMMERCIAL PROPERTY 
 
 327. Inventions are Property Rights. The right 
 of an author or inventor cannot be strictly a right of 
 property because property is by its nature perpetual 
 and hereditary, while these rights are not of such a 
 character. Besides, society cannot consent to books 
 and inventions remaining in the possession of heirs who 
 may be ignorant, selfish, and always quarreling with 
 those who improve the original work. It must give 
 works of the intellect free circulation when the neces- 
 sary time of the exclusive right has passed, during which 
 the author or inventor can gain sufficient recompense 
 for his labor. The conversion of the right of an author 
 or inventor into property, on one hand, causes a con- 
 fusion accompanied by frequent litigations between the 
 inventor and the man who has or thinks he has improved 
 a process or machine, and, on the other hand, causes a 
 kind of oppression of humanity by the selfishness of the 
 heirs. It is clearly irrational that ownership which 
 effectuates the laws of well-being (as Vico has told 
 us) should produce disorder and injustice and render 
 human life stationary by opposing intellectual prog- 
 ress. Neither is the right of an author or inventor to 
 be regarded in the aspect of personal right, because it 
 is at bottom a direct relation between a man and things, 
 between the author or inventor and the book or inven- 
 tion, both products of individual activity. In the right 
 of an author or inventor the personal element is sub- 
 ordinate to the economic element, and this subordina- 
 tion is the cause of its transferability by acts "inter 
 vivos" or by will. The subordination of the personal to 
 the economic element shows that the industrial or literary 
 work is considered as an economic interest, as a financial 
 value, and not as an important spiritual product giving 
 glory and fame. The right of an author or inventor 
 includes the profit which he can get from his intellectual
 
 INVENTIONS PROPERTY RIGHTS 521 
 
 labor incorporated in a given form, and does not embrace 
 the incorporeal property which is represented by the 
 reputation of the author or discoverer of a truth, law, or 
 phenomenon, which is not guarded by law and exists 
 only in the opinion of the erudite. This incorporeal 
 property can be the matter of literary, scientific, and tech- 
 nical discussion, but is never the object of legal action 
 except in the case of plagiarism, and is distinct from the 
 right of an author or inventor. If this property, purely 
 moral, is confused with the right of reproduction and 
 sale, it is necessary to remember that it ends when such 
 a right ends, and therefore needs no special recognition. 
 It is said that this subordination is not true because 
 the economic element cannot exist in scientific and 
 literary works, but this is not a question of fact, but 
 of right. It is sufficient that there be a possibility of 
 economic interest or profit in order that the right of 
 an author should be guarded, and nothing further is 
 necessary for legal recognition. The true reason of the 
 transferability of the right of an author lies in its 
 economic and financial character, because purely per- 
 sonal rights cannot be transferred. Eliminating the 
 two hypotheses that it is a property or personal right, 
 there still remains the possibility that it has the nature 
 and form of a property right analogous to that of a 
 usufruct. With the usufruct there is a just proportion 
 between the merit of work (into which not a few ele- 
 ments of human activity enter) and the recompense 
 which does not constitute an obstacle to the diffusion of 
 ideas and the propagation of the invention. The usufruct 
 harmonizes equally the undeniable right of the author 
 or inventor with the evident needs of society without 
 sacrificing one to the other. We understand that it 
 can be given by law to the heirs who represent the per- 
 sonality of the author during the remainder of his
 
 522 COMMERCIAL PROPERTY 
 
 period of enjoyment of it. But the usufruct, you say, 
 supposes property and cannot pass to heirs. The reply 
 is not difficult since it is a property which is closely 
 connected with the community, and besides, such a 
 right is a usufruct "sui generis," because though it is of 
 short duration it can pass for a certain number of years 
 to the heirs. 
 
 328. Patents. Inventions are generally protected 
 by patents, an English institution which gives an in- 
 ventor a right to the exclusive use of his discovery 
 for a certain number of years. A patent ordinarily does 
 not insure the reality or the utility of the invention, 
 since the State cannot enter into technical discussions, 
 and merely guards the right founded on the supposed 
 nature of the invention. Not a few objections are 
 raised against this institution; it is said that the patent 
 harms the inventor because of its short duration, that 
 it is a cause of frequent litigations which harm all 
 business, though ignorance will not admit it. Without 
 doubt the inconveniences shown are true, but then 
 there has not been found in industrial law a better 
 means of protecting the inventor's right. Everyone 
 knows that there is good and bad in everything; the 
 object is to obtain the predominance of the former, since 
 it is impossible entirely to eliminate evils. It is useful 
 to remember that the abuse of patent rights is one of 
 those examples of unfair competition of which we have 
 spoken. 1 The rights of an author or inventor exclude 
 by their very nature any competition which, in their 
 case, becomes a private tort or wrong, capable of a 
 monetary valuation. 
 'C/. 320 ante.
 
 PERSONAL AND PROPERTY RIGHTS 523 
 
 CHAPTER X 
 SUNDRY PROPERTY RIGHTS 
 
 CLASSIFICATION OF RIGHTS OVER THE PROPERTY OF OTHERS. 
 SERVITUDES AND THEIR KINDS. THE METHODS IN WHICH 
 SERVITUDES ARE CREATED, EXERCISED. AND EXTINGUISHED. 
 EMPHYTEUSIS. THE SUPER-SOIL. PLEDGE AND MORTGAGE. 
 THE CHARACTER OF LIENS. 
 
 329. Personal and Property Rights. Property 
 rights are relations direct and immediate between 
 persons and things. They can be reduced to two main 
 categories; to "plena potestas in re" and to "jura 
 in re aliena." The rights over another's property 
 are not a dismemberment of the complex right of prop- 
 erty but limitations placed upon its exercise, because 
 property is always a power complete and full over its 
 object and would not be such if its elements could be 
 separated from one another. In this case the division 
 would not be a quantitative variation, of no importance 
 in itself, but a change of quality, for the essence of 
 ownership is control of all the attributes. The "jura in 
 re aliena" have their justification in the diverse uses and 
 utilities of things by which they become advantageous 
 to men whom they affect, and although they are prop- 
 erty of a particular individual and to society generally. 
 These rights, inasmuch as they are direct relations between 
 persons and things, assume logically the character of inde- 
 pendent rights of themselves, like "plena potestas," and 
 are very different from those limits and bonds which con- 
 tractual rights place on ownership. Whoever acquires 
 right of this last kind (for example, a lease) exercises par-
 
 524 SUNDRY PROPERTY RIGHTS 
 
 tial rights of property conferred upon him in the name of 
 the owner, because personal rights are immediate rela- 
 tions between one individual and another. The difference 
 can be explained by the different nature of property and 
 personal rights and the separation of property rights 
 from their subjects by virtue of which they stand 
 alone. In this way we can conclude that the Roman 
 maxim, "Servitus in faciendo consistere non potest," is 
 not exclusively applicable to servitudes alone but can be 
 applied to any "jus in re aliena." In the first place, 
 every "jus in re aliena" subjects another's property to 
 the special and restricted power of him who is the sub- 
 ject of the right independently of any claim through the 
 owner. The latter would be held to the"facere" if the 
 relationship from which grows the "jus in re aliena" 
 was personal and did not refer to the property itself. 
 The "facere" is the object of a contract right but is 
 repugnant to a property right. The special property 
 rights either look to the enjoyment or protection of a 
 right. Servitude, emphyteusis, and the right to light 
 and air are of the first kind ; pawn and mortgage are of 
 the second. 
 
 330. Servitudes in General. A servitude is the most 
 ancient of the particular property rights. It was at one 
 time the only one. It can be considered in an active 
 or passive sense as it tends to increase or diminish the 
 property. In the active sense, that is, from the point 
 of view of the person or thing in whose favor it is 
 established, it is a right over another's property, by 
 virtue of which the owner of the latter is held bound 
 in regard to a person or estate to tolerate or not to 
 do that which as owner he could do. In a passive sense, 
 that is, from the point of view of the thing involved, 
 it is a burden imposed on land to the advantage of an- 
 other person or land. From this definition we can see
 
 PERSONAL SERVITUDES 525 
 
 the first division of servitude into personal and real or 
 predial, according to whether the object of its establish- 
 ment is a person or a thing. In respect to the object, all 
 servitudes personal or predial are essentially real rights 
 because they fall on things or land, never on persons. 
 The dominant tenement in a real servitude cannot be 
 regarded as a juridical person, as nothing which lacks 
 will can be the subject of rights. In the dominant tene- 
 ment there is a right which can be exercised by any 
 future possessor of it, but no subject. Metaphor is 
 not reality ; the representation of a thing is not its con- 
 cept. Personal servitudes, on the other hand, are different 
 in many aspects from the predial. These do not suppose 
 a tenement but are attached to a person, and therefore are 
 not perpetual like the real, whose duration is the dura- 
 tion of the two tenements, and they can fall on personal 
 property while the predial can only fall upon land. The 
 usufruct of clothes and of money is an example of the 
 personal servitude over personal property. 
 
 331. Personal Servitudes. The personal servitudes 
 are three: usufruct, use, and "habitatio." 1 "Usufruc- 
 tus est jus alienis rebus utendi, fruendi salva rerum 
 substantial' The owner of the usufruct should enjoy 
 the thing as a good father, as the owner should enjoy 
 it, saving his substance as well in matter as form. 
 The preservation of one's substance is not the same 
 as the preservation of value, because the termination 
 of value does not touch the essence but expresses 
 the measure of exchange or the power of acquisition 
 of another's goods. The owner of a usufruct has the 
 right to the "uti" and the "frui." He can make use 
 of the object and take its fruits and enjoy them to the 
 
 1 Usufruct is the right of enjoyment of an object and its products. 
 "Usus," or user, is the right to as much of the natural product of some- 
 thing as the user needs to sustain life. "Habitatio" is the right to 
 use a house as a dwelling.
 
 526 SUNDRY PROPERTY RIGHTS 
 
 full satisfaction of his personal and domestic needs. He 
 has also the right of granting title to a third person 
 both gratuitously and for a consideration. The law 
 establishes between the owner of the usufruct and the 
 owner of the object such relations as guarantee the lat- 
 ter complete enjoyment during the usufruct and keep 
 his interest from doing any possible harm to the prop- 
 erty and to the future enjoyment when the usufruct 
 will become one with the property. From the simple 
 conception of the usufruct it can be inferred that it 
 could not strictly be exercised over destructible objects. 
 The Roman law of imperial times had recourse to an 
 analogy and constituted for such things a "quasi-usus- 
 fructus," which was very similar to pawn because the 
 owner of the usufruct of perishable objects acquires 
 property in them and has only the obligation of the 
 restoring the "tantundem" at the end of the usufruct. 
 And yet it cannot be strictly said that the "quasi-usus- 
 fruct" constitutes a right of credit and is not a property 
 right. When the "quasi-ususfruct" begins the "res" is 
 "aliena" and becomes the property of the owner of the 
 usufruct through the exercise of his right. The right of 
 enjoyment of destructible things, therefore, is not a mere 
 right of credit but is that of an owner by the "tantun- 
 dem." From the usufruct we must distinguish the use 
 which according to modern codes is a usufruct limited 
 to the needs of its owner and his family, and the "habita- 
 tio," which is the use of a house. Going back to the 
 sources of Roman law, the conception of a use is given a 
 reasonable determination because by rule it contains only 
 the "uti" and not the "frui." If the thing is useful with- 
 out its fruits, the owner of the use must use it (as it is 
 written in the early law) without appropriating the 
 fruits; but if the thing is not useful without its fruits, the 
 owner of the use can gather them for his individual and
 
 PREDIAL SERVITUDES 527 
 
 domestic needs. A use cannot be leased or sold since it 
 might be changed and extended to the harm of the 
 owner of the property. 
 
 332. Predial Servitudes. Predial servitudes (which 
 are the primitive forms) were anciently divided into rural 
 and urban because of the great difference of the needs 
 of the country and the city; consequently there was 
 a division made of servitudes into those relating to 
 fields and buildings. And we can say, although not 
 a few servitudes are applicable to both the country and 
 city, there are in all ages servitudes which look prin- 
 cipally (if not exclusively) to the needs of agriculture 
 and servitudes of a distinctly urban character. The 
 rights of water and ways are of the first kind ; those of 
 support, party-walls, and light belong ordinarily to the 
 second. The servitudes are distinguished as positive or 
 negative depending upon whether they are permissive 
 or prohibitive; as continuous or discontinuous depend- 
 ing upon whether or not they demand in their exercise 
 an act of man ; into apparent and non-apparent depend- 
 ing upon whether they can be seen or not with the 
 eye. This distinction has no practical importance, as 
 we commonly say, but it is bound up with the principles 
 of the methods of acquisition and exercise of the servi- 
 tudes, which must conform to their nature. A "jus in 
 re" is without doubt classed with the "dominium" and 
 "jura in re aliena;" the "dominium" concerns the "res 
 corporales," through the intimate and individual inter- 
 penetration of the "plena potestas" with the "res"; the 
 "servitutes" on the other hand, are concerned with the 
 "res incorporales." The "possessio," a relation between 
 persons and things, is logically connected with the prop- 
 erty rights, and therefore can be extended to the servi- 
 tudes which are "res incorporales." We will see now 
 the consequences of this. In the first place predial
 
 528 SUNDRY PROPERTY RIGHTS 
 
 servitudes can be derived from law or the act of man. 
 Law establishes them for purposes of public and pri- 
 vate utility ; the legal servitudes are increased with time 
 through the evolution of individuals and society. A 
 party-wall, according to the Roman law, was only 
 created by private contract, but now it is brought about 
 by statute. The Roman law allowed a right of way 
 only to get to the sepulchre of one's ancestors; modern 
 law allows it for cultivation and the convenient use 
 of one's land. An aqueduct was recognized in Rome 
 as a servitude because of its necessity. It has been 
 introduced in our times because the interests of the 
 agriculturists and industrialists should not be made to 
 depend upon the selfishness of the landowner. The 
 Roman law gave the owner of a tenement the right to 
 dig wells, even tapping the water supply of his neigh- 
 bor, and did not decree specific distances between the 
 wells of different owners. Modern law, however, 
 establishes a distance, which can be increased when 
 necessity demands it (the judicial authority fixes the 
 increase) in order not to harm other land, springs, and 
 preexisting canals and aqueducts. In all these examples 
 we can clearly see that constantly more control is ex- 
 ercised over property for social objects, and its selfish 
 use is forbidden without harm to its individuality. Still 
 more triumph will yet be accorded those principles of 
 economic law, of which Romagnosi has been the systemic 
 standard-bearer. 
 
 333. Servitudes Derivative from Acts. The predial 
 servitudes derivative from the act of man, if continuous 
 and apparent, can be acquired with title, or by the 
 designation of the pater-familias, 1 or prescription; but 
 if discontinuous and non-apparent, with title alone. Is 
 
 1 Where an owner of two farms creates a servitude, which springs up 
 upon alienation to two different owners, there is a "designatio."
 
 DERIVATIVE FROM ACTS 529 
 
 this an arbitrary disposition of positive law or is it con- 
 sonant with rational law? Admitting by the light of 
 reason that servitudes are capable of possession (or 
 "quasi-possessio," as the Roman jurisconsults say,) and 
 that continued and uninterrupted possession, if certain 
 and public, gives a prescriptive right; we must conclude 
 that the methods of acquisition established by positive 
 law are consequences of a rational principle. And in 
 truth, in the continuous and apparent servitudes there 
 is certain and public possession, and therefore the pos- 
 sibility of acquisition by prescription. The designation 
 of a pater-familias presupposes a single owner of two 
 neighboring farms who makes one subservient to the 
 other. Since both of them belong to him there is no 
 servitude, but the servitude springs up when the farms 
 belong to different men. Only continuous and apparent 
 servitude can be shown by a "designatio" or result 
 therefrom. A "designatio" could not have the power of 
 establishing discontinuous and non-apparent servi- 
 tudes. Such servitudes cannot be acquired by prescrip- 
 tion or by the designation of the pater-familias, as they 
 lack the requisites of legitimate possession. The 
 methods of exercise of a servitude are governed in the 
 same way as their acquisition. If they originated by a 
 grant, it determines their exercise; if they arise by 
 designation or prescription, we must remember the state 
 of things left by the single owner and have recourse to 
 the maxim, "tantum prsescriptum, quantum posses- 
 sum." Predial servitudes are extinguished by merger, 
 by the change of the state of the dominant or servient 
 tenement so that the former can no longer make use of 
 it, by the renunciation of the owner of the dominant 
 tenement, by the joining of boundaries, and by prescrip- 
 tion. Prescription cannot bring about all the servitudes 
 but has the power of extinguishing all of them, because
 
 530 SUNDRY PROPERTY RIGHTS 
 
 society has an interest in the complete freedom of prop- 
 erty. Property, freed from burdens and dependent upon 
 a single will, is quicker to use, and therefore more 
 productive. 
 
 334. Servitudes of Constructions. The right of con- 
 struction in modern times cannot be understood more 
 accurately or in a manner conforming more to reality 
 than it was by the Romans. According to the Roman 
 law, the rigorous maxim, "Superficies cedit solo," was in 
 force, and it was not possible to determine exactly the 
 right of construction, which is really only shown as 
 ownership by the erection of a building. The owner 
 of such a right, though he had in fact the rights of 
 an owner by pretorian equity, was not considered as 
 such, but was looked upon rather as the subject of 
 a "jus in re aliena." Getting down to the reality of 
 things, whosoever acquires the right of building over the 
 land of another does not wish in the least to make the 
 owner of the building the owner of the soil. The latter 
 is the owner of the subsoil, but can well limit the exten- 
 sion of his right over the super-soil and allow another to 
 build and be the owner of the construction erected over 
 land which continues to be his. There is no legal impos- 
 sibility in this case that is reconcilable with the pre- 
 sumption of the civil code that any building, crop, or 
 work over or above the soil shall be regarded as made by 
 the owner at his expense and belonging to him as long as 
 the contrary is not shown and as long as it is not shown 
 that another has acquired the "jus superficiei," by paying 
 the owner of the soil for it. In looking at the relation 
 between the two owners, there is no doubt that the right 
 to build over the land of another and to hold this right 
 against any possessor is real. It cannot be a right of 
 property when the building is lacking, as Lucci says in 
 his book"Natura del Diritto di Superficie." But in con-
 
 EMPHYTEUSIS 531 
 
 sidering the relations between the owner of the building 
 and the right, the right is proprietary and has peculiar 
 characteristics. Coviello, in his monograph "Delia 
 Superficie," notes that such property is not limited by 
 itself but by the object to which it is applied. Such prop- 
 erty in a building cannot be confused with the property in 
 a house. The owner of a house or of any kind of an estate 
 is the owner of what is above it and below it as far as his 
 practical interest extends. The owner of the right has 
 only propertyin the lightand air, whatis "super faciem 
 soli." We must understand that the right goes with the 
 ownership of the land and therefore must be determined 
 in the measure given by a necessity of having the con- 
 struction on the soil or of using that already existing, and 
 everything which exceeds this necessity exceeds the sphere 
 of rights of its owner. Also in the hypothesis of a tem- 
 porary and destructible right the owner of the right is 
 the owner of any construction. The buildings of private 
 citizens on public land, by concession from the govern- 
 ment, are revocable property, the land always remaining 
 public. Tombs and sepulchral monuments have a similar 
 nature but are constructions belonging to individuals on 
 public soil. The individuals have the right to take 
 away the statues, demolish the chapels or monuments, 
 and put them in a new cemetery. The right of a rail- 
 road, states Coviello, is a true right of property. The 
 soil is public, but the company enjoys the exclusive 
 right of erecting stations, warehouses, houses, depots, 
 tracks, and all that constitutes its outfit. The same 
 can be said of tramways, boxes in theatres, or pews in 
 church. 
 
 335. Emphyteusis. Besides the servitudes there 
 is another particular property right giving a right of 
 use; that is emphyteusis. This, with its many powers, 
 is nearer than the other "jura in re aliena" to owner-
 
 532 SUNDRY PROPERTY RIGHTS 
 
 ship. It is the right to use a thing, take its fruits, 
 and grant it by will or deed, but with the two obli- 
 gations to pay the grantor of the estate an annual 
 rent and not to let the. land deteriorate. When the 
 emphyteuta fails in these obligations there is a re- 
 version of the estate to the grantor. The constitution 
 of Zeno gives a special and distinct character to emphy- 
 teusis, solving the questions of whether it was a lease or a 
 transfer and recognizing the right derived from it as a 
 "jus in re aliena." The school of commentators sees in 
 emphyteusis a division of "dominium," and gives the 
 grantor the "directum" and the grantee the "utile." 
 Reasonably this division cannot be admitted because 
 in emphyteusis there are two wills, one of which 
 exercises on the estate an effective and almost complete 
 control, the other of which is abstract, more distant 
 from the object, and is shown only by the exaction of a 
 nominal rent and by the reversion upon deterioration. 
 The first will is really that of an owner because it is shown 
 with almost complete 'powers of property. The second 
 is that of a man who simply has a right over something. 
 The property of the grantee is controlled by his resolu- 
 tion to fulfill his two obligations ; the right of the grantor 
 is more of a right of credit and assumes the semblance of 
 a real right "sui generis." In Germany emphyteusis is 
 considered as a kind of divided property; in France it was 
 so connected with the feudal system that the Code did 
 not speak of it. The Italian Civil Code recognizes it but 
 establishes a right of redemption in favor of the grantee ; 
 and this is in accord with economic principles, with 
 which emphyteusis should not run counter because it is 
 useful in those cases where we find a large extent of un- 
 cultivated land. The owner, in such a case, can get no 
 profit from his estate either by a transfer or long term 
 lease, but through emphyteusis he can obtain a certain
 
 PLEDGE AND MORTGAGE 533 
 
 sum of money in rent. On the other hand the emphyteuta 
 by careful work can have a good profit, and by taking 
 advantage of the exemption laws acquire definite and 
 irrevocable property. 
 
 336. Pledge and Mortgage. 1 Pledge and mortgage 
 are "jura in re aliena," which guarantee a debt. The 
 obligations of the person are placed upon their present 
 and future chattels because such are the projection 
 of the person himself. The goods of the debtor are 
 the common guaranties of his creditors and their value 
 is divided among them ratably, unless some creditor 
 has a legitimate cause for preference. In spite of a 
 generic pledge, the debtor can dispose of his goods in 
 whatever way he wants, but this right is limited by bad 
 faith and the consequent removal of goods in fraud of 
 creditors. Some do not wish to run any risk, and 
 therefore get a pledge in strict form by which the object 
 passes into their hands, but without becoming part of 
 their estate or object of their enjoyment. The right of 
 the pledgee lies in the eventual receipt and appropria- 
 tion of the value and price of the object pledged. It is 
 not a "jus in re aliena." Differing from them, it does 
 not give a partial property over the object or any right 
 of enjoyment. The creditor cannot dispose of the pledge 
 upon failure of payment without an order of court, to 
 the appraised value, or that it be sold at auction. A 
 "pactum commissorium," which authorizes the creditor to 
 take the pledge and dispose of it without the conditions 
 established by law, is a nullity because it is the result of 
 a dishonest calculation founded on the stress of circum- 
 stances and the illusions of the debtor, and because it 
 changes a right to the value of something into a future 
 right of property. Atone time the word "pignus"in Rome 
 
 1 Mortgage is here used to translate the Italian "ipotica," the civil 
 "hypotheca."
 
 534 SUNDRY PROPERTY RIGHTS 
 
 had a broad signification and took in all the kinds of 
 securities given to a creditor, the pledge of realty and per- 
 sonalty, antichresis, which gives the profits of the pledge in 
 lieu of interests, mortgage, which had a strict and deter- 
 mined meaning and which applied to personalty. The 
 Austrian Code uses it as a general word comprehending 
 the pledge, properly so called, and mortgage, and yet it 
 distinguishes the two institutions. The French Code 
 includes antichresis in pledge, thus differing from the 
 Roman law by which realty or personalty could be given 
 in pledge without making an antichresis. The latter con- 
 sisted in an agreement added to the contract of pledge, 
 giving the creditor a right to enjoy the property, taking 
 the fruits instead of interest. Antichresis was originally 
 a reciprocal loan and not a pledge, and created no privi- 
 lege over the object or property rights against third 
 parties. The French Code looks upon antichresis as the 
 pledge of realty, but does not give the privilege to the 
 anticredical creditor and thus falls into a clear contra- 
 diction. If the Roman law did not admit this privilege, 
 it was consistent because it did not include antichresis 
 in pawn. The Italian Code shows better than the 
 other codes the nature of the three institutions which, 
 in truth, are methods of security, although not all of 
 them give place to property rights. It assigns different 
 legal features to the three institutions and speaks of 
 them separately without the use of the definite article. 
 337. Antichresis. Pledge and Mortgage. Recording. 
 Pledge and mortgage are property right of guarantee, 
 one implying the possession of personalty and the 
 other applying the case of realty. Antichresis is a 
 contract apart, by which the creditor takes the fruits 
 of the debtor's realty, with the duty of applying them 
 to the payment of interest and capital loaned, and creates 
 a personal right. It is just and proper to restrict the
 
 PLEDGE AND MORTGAGE 535 
 
 effects of the contract of antichresis to the parties, because 
 the law furnishes a creditor means of arming himself 
 against the bad faith of a debtor by the property right 
 of mortgage. Social economy cannot greatly favor 
 antichresis; the interest of the creditor is to get the 
 greatest amount of fruit from the estate and to expend 
 on it the least that he can. It is enough that the debtor 
 gives the creditor the right of getting the fruit without 
 conferring preferences upon him. We may add that 
 antichresis is apt, especially if it is for a loan of long dura- 
 tion, to cover usury because of the uncertainty of the 
 amount of the fruits, and the usury would not be affected 
 by the only restraint that is in force to-day, that is, 
 publicity. This is the reason why both the canon and 
 Austrian law do not recognize antichresis and the grant- 
 ing of the usufruct of a pledged estate. If the creditor 
 is not put in possession of the pledge he will only have a 
 personal action against the debtor to obtain it. But he 
 will have no property right, because a property right 
 supposes a direct relation between the person and thing, 
 which is lacking here. Tradition in pledge is like the 
 recording in mortgage; and we can note that tradition 
 can be actual or symbolic, as in the cases of the pledge of 
 commercial property. Mortgage is defined in the 
 earliest writings, as it is denned in modern law, but the 
 Roman system made almost exclusively for the interest 
 of the mortgagee and had a particular regard for the 
 owner of the first mortgage, while the law of to-day is 
 based upon the two financial principles of publicity and 
 certainty. Publicity is gained by "transcriptio" and 
 recording: a "transcriptio" is applicable to the trans- 
 ferable titles of realty and is a right that does not 
 destroy or affect its disposition; recording regards 
 the mortgage. Recording is a kind of public tradi- 
 tion, which the Romans did not have because they
 
 536 SUNDRY PROPERTY RIGHTS 
 
 laid emphasis on physical tradition. Publicity, there- 
 fore, is in the interest of the third parties, who 
 should know who is the owner of an estate and what 
 encumbrances there are upon it. Through recording, 
 third parties can know of the mortgages and can defi- 
 nitely determine the value of the mortgaged property. 
 Certainty has to do only with debts, and is duplicate in 
 the sense that a mortgage can be certain in that it 
 falls on determinate goods and is for a determinate sum. 
 The object of this is to warn third parties so that they 
 will not be misled as to the financial condition of the 
 debtor, and so that the inconvenience of the opposite 
 system, deplored for so long a time, and so harmful to 
 the development of credit, may no longer be possible. 
 338. Vessels. The question has been raised 
 whether a ship can be pledged or mortgaged. 1 Vari- 
 ous have been the opinions, diverse the legal defini- 
 tions. Really, a ship by her nature should be 
 placed among personalty, and as personal have the 
 Roman law and the Italian school considered her, 
 unlike some of the laws of the Middle Ages. A ship, 
 however, is a kind of personalty "sui generis," so 
 the statutes, realizing her particular importance and 
 wishing to protest and promote maritime credit, are 
 forced to subject her to the same conditions as are nec- 
 essary in conveyances of realty, to assign her to a definite 
 district, and to remove her from the jurisdiction of per- 
 sonalty and its maxim that possession is nine-tenths of 
 the law. If a ship is regarded as a simple chattel and can 
 be pawned, although remaining in the control of the 
 debtor for his use, a formality representing the transfer 
 of possession is necessary, that is, the appointment of 
 the trustee ; but if we consider a ship a kind of personalty 
 "sui generis," which must be considered from certain 
 
 1 Cf. 337 ante.
 
 LIENS 537 
 
 legal points of view as realty because of the necessity of 
 not depriving the debtor of his possession as well as of the 
 accidental nature of the formality of appointing a trus- 
 tee, it is more reasonable to allow a mortgage, as the 
 French law has done. 
 
 339. Liens. Another method "sui generis" of 
 guaranteeing credit is the "jus retentionis" or lien. 
 This is the legal authority given to the possessor of 
 something who is the creditor of another by either 
 a property or personal right, to continue in posses- 
 sion of the debtor's property until his demand, based 
 on the thing obtained, has been satisfied. There is 
 a full definition given by Guarracino in his book 
 "II Diritto di Ritenzione." The "jus retentionis" in 
 its strict and proper sense presupposes a recognition of 
 another's right over the object, and looks only to the 
 guaranteeing of the payment of a debt in its regard, and 
 therefore does not extend to cases in which the object 
 is kept through the failure to satisfy a debt, and more 
 particularly to those cases which give the "exceptio non 
 adimpleti contractus." Neither should this right be 
 confused with contractual possession, which is part of 
 pawn or antichresis, for it can be established independ- 
 ently of these contracts. The "jus retentionis" is a spe- 
 cial accessory right which differs fundamentally from all 
 other property rights or obligations. It is not like the 
 "jus in re aliena" because it does not give rise to any use 
 or enjoyment, as the servitudes and emphyteusis do, and 
 because the object on which it is exercised and its price 
 are not applied to the satisfaction of the debt, as in pawn 
 and mortgage. On the other hand it is not a personal 
 right because the creditor does not claim that the object 
 is owed him by the other party, through a "vinculum 
 juris" existing between them. It can be a relation of 
 obligation, Guarracino says, but in a different sense, that
 
 538 SUNDRY PROPERTY RIGHTS 
 
 is, for the benefit of the debtor, since he can claim to have 
 the assignment or restitution of the object by a personal 
 right which is contractual. The "jus retentionis," 
 admitted more or less by all legislation, is based on natural 
 equity which will not allow the claim for assignment to 
 be satisfied thus depriving the assignor of the payment of 
 a debt due in the same transaction. It would not be 
 right to alter the equality between the parties to the 
 possible harm and no little trouble of him who has 
 suffered expense for another's property.
 
 POSSESSION IS NOT PROPERTY 539 
 
 CHAPTER XI 
 
 POSSESSION 
 
 THE NATURE OF POSSESSION. ITS HISTORICAL ORIGIN. ITS 
 DEVELOPMENT IN LEGISLATION. CRITICAL EXPOSITION OF THE 
 DIFFERENT ABSOLUTE AND RELATIVE THEORIES. ITS RATIONAL 
 BASIS. CRITICISM OF IHERING'S THEORY OF THE WILL TO 
 POSSESS. 
 
 340. Possession is not Property. The "jus possi- 
 dendi" is one thing, and the "jus possessionis" another. 
 The fiist is the consequence of a right of property, its 
 more immediate actualization; the second, distinct and 
 different from the "plena potestas," forms a separate 
 and different institution. In early law we find this 
 separation, because there it is said "separata esse debet 
 possessio a proprietate" and "nee possessio et pro- 
 prietas misceri debent," since there was nothing in 
 common between the two institutions: "nihil comune 
 habet proprietas cum possessione." The earliest sources 
 of Roman law declare that possession is a distinct right 
 and the material of a special institution, when they 
 affirm, "possessor hoc ipso quod possessor est plus juris 
 habet quam ille qui non possidet." 
 
 341. Possession is a Right. The "jus possessionis" 
 or legal possession, is a direct relation between a person 
 and thing and therefore is a "jus in re," a property 
 right. But it is not like the other rights, as Bruns says 
 in his work, "Besitzklagen des Romischen und Heuti- 
 gen Rechts." It has a special character and is a relative 
 right because the will of the person to control objects
 
 540 POSSESSION 
 
 is not exercised over objects without an owner and does 
 not become absolute ownership, but must yield before 
 the higher right when the latter is shown. Legal pos- 
 session is composed of two elements, a chattel with a 
 de facto right over it, and the intent of keeping the 
 chattel and working therewith. The phrase, "Corporalis 
 possessio corpore rem attingere corpore in fundo esse," 
 indicates the first element. The phrase, "Animus rem 
 sibi habendi animus possidendi animus domini," refers 
 to the second. The chattel and the de facto power 
 over it must join in the person in such a way as to give 
 rise to knowledge of the possibility of enjoying the 
 thing or of exercising the power. This condition, 
 shown by Savigny in "Recht des Besitzes," and 
 admitted by Bruns and Windscheid, has more to do with 
 the continuation of possession than with its beginning, 
 because at the moment of acquisition it needs a positive 
 effective activity, through which new relation between 
 the person and thing is brought about. And in the 
 continuation of possession, too, the knowledge must 
 not be confused with the "vis inertia," but should 
 be practical and active. It should appear in a par- 
 tial exercise of the de facto power. The intention 
 of keeping and using the thing is a specific mark of 
 possession and is the concept by which it is distinguished 
 from mere detention. The detainer has no intent to 
 keep the thing for himself or his own advantage; he 
 has possession in the name of another and is not the 
 possessor, but the agent, of him in whose name he keeps 
 it. The possessor does not lose his right of possession 
 when he does not exercise his power in a direct manner, 
 but through another, who exercises it for him and 
 in his name. If possession is an immediate relation 
 between a person and thing, it cannot be extended to 
 obligations and family rights (as Bruns would wish) but
 
 THE HISTORY 541 
 
 must be limited within the sphere of property rights. 
 Yet not all property rights are capable of possession, but 
 only those which are based on a continuous and known 
 use, as emphyteusis and usufruct, the continuous and 
 apparent servitudes; and therefore the right of mortgage 
 which is a property right is not susceptible of possession, 
 because it would be extinguished by its use, that is, by 
 the sale of the land. From this it can be inferred that 
 possession is of two forms, depending upon whether it is 
 applicable to chattels or rights. The possession of the 
 thing corresponds to the exercise of the right of prop- 
 erty; the possession of a right corresponds to the exercise 
 of a "jus in re" that has the qualities that we have 
 shown. 1 The "quasi-possessio," as Bruns teaches, is a 
 regular form of the simple notion of possession and is not 
 anomalous or exceptional, as was believed by Savigny, 
 Thibaut (in his "System der Pandekten"), Windscheid, 
 and others. 
 
 342. The History of Possession. The historical 
 origin of possession is obscure and has been the sub- 
 ject of much controversy. If it is a relative property 
 right, as we have said before, 2 it cannot arise where 
 individual property is lacking. Possession is a direct 
 relation between a person and thing and yields only 
 in the face of a property right, which must be proved in 
 order to conquer and overcome it. The very notion 
 of possession presupposes the existence of private prop- 
 erty. Filomusi-Guelfi cites a law of Locros, attributed 
 to Zaleucos, and a place in Aristotle, to show that the 
 need of an independent defense of possession gave rise 
 sometimes to a process of property. The Locrian law, 
 preserved for us by Polybius, protected the possession 
 of a chattel in controversy for a certain time without 
 
 1 Cf. 326 ante. 
 2 Cf. 338 ante.
 
 542 POSSESSION 
 
 hindrance, "nee vi," until a legal decision was rendered, 
 as is equitable. Aristotle says that it is a rule of justice to 
 give preference to the possessor until the decision is ren- 
 dered. Even in Rome, according to Puchta, the institu- 
 tion was invoked when there was an uncertainty about 
 the possession in the case of a sale, and it was also used 
 to solve the question until a final decision on the prop- 
 erty, which made the possession exist per se and apart 
 from the property. Niehbuhr, in his "Romische Ges- 
 chichte," and Savigny say that the protection of pos- 
 session is connected with the "ager publicus. ' ' The citizens 
 had only the enjoyment of this "ager, "and felt the need of 
 a means of protecting this right which was not included by 
 the laws of private property. This means of protection 
 was the pretorian edict, at first applicable only to the "ager 
 vectigalis," then, on account of its great utility, it was 
 extended to private property. Sciajola, in his "Com- 
 mento alia ProceturaSarda," admits with Puchta that the 
 provisions for possession have been preliminary, but he 
 does not believe that they have been the origin of pos- 
 session but that it is a derivative of the "ager publicus." 
 Van Wetter disagrees from Puchta, and tries to prove 
 that the tests on which the latter relies show only that 
 there was need of an injunction until the question of 
 possession, which was a question of ownership, was 
 settled. Contrary to the belief of Niehbuhr and Savigny 
 is the fact that in the earliest law there are no illusions 
 to possessoryinj unctions over the "ager publicus," which 
 was protected by a special injunction "de loco publico 
 fruendo." Ihering tries to show that the cause and pur- 
 pose of the possessory injunctions are found in the necessity 
 of the preliminary action for ownership, but Savigny 
 had already noticed this necessity in the"vindieiae"and in 
 "manus concertae." Bruns, in his work "Das Recht des 
 Besitzes im Mittelalte und in der Gegenwart," showed
 
 ROMAN LAW 543 
 
 clearly that these injunctions were for the protection 
 of the right of possession. 
 
 343. Possession in Roman Law. If it is true 
 that the nature of things is nothing but their birth 
 at definite times and with definite characteristics, 
 as Vico taught, the modern doctrine of possession, 
 like every other doctrine, cannot be understood without 
 tracing its first elements. These are found by study- 
 ing the laws of Rome and the common and canon law. 
 This Milone did not do in his study "Possesso delle Cose 
 e dei Diritti." Roman law divided possession into three 
 kinds, the "naturalis possessio," or simple detention; the 
 "possessio," enriched by work; and the"civilis possessio," 
 founded on a just title, good faith, and leading to title by 
 prescription. In the early law books it is said "possessio 
 animo et corpore constat." It seems that the "animus 
 possidendi" includes the "animus domini" or the posses- 
 sion with title to the property or possession with any 
 other title, as Van Wetter and Milone show. This intent 
 is lacking in the agent who keeps the object for another. 
 It is lacking also to the factor, bailee, and pledgee who 
 have possession by contract and not by any property 
 rights. The "juris quasi-possessio" embraces the cases 
 of personal and real servitudes. The Roman law treated 
 as a possessor the pawnee-creditor or him who took in 
 emphyteusis, the owner of the right in the air, and the 
 bailee only when the parties to the bailment allowed him 
 possession to break the prescriptive right, and him who 
 has the object by virtue of a "precarium." Rationally, of 
 these five cases of "possessio" only three are regular, that 
 is, the first three which have to do with property rights; 
 but the last two, those of bailment and "precarium," 
 constitute an anomaly in the philosophy of law because 
 they are without the sphere of the "jura in re." We 
 know that the means of defense of possession were
 
 544 POSSESSION 
 
 peculiar, some of them like the interdicts, and some were 
 general actions like the "condictiones." 
 
 344. Possession in Modern Law. The three kinds 
 of law, the canon, common, and feudal, applied the 
 right of possession to new property rights in the 
 form of offices, dignities, immunities, and taxes. It 
 clearly is not rational to confuse public functions with 
 private rights. But the application of the right of 
 possession to these functions, considered as "jura in re" 
 while they rightly cannot be such, was not illogical 
 and contradictory. The canon law made no innovation 
 besides this extension of the "unde vi" of the Romans 
 through the "actiospolii" which applied it to new kinds of 
 chattels, and to personalty. The common law followed 
 the maxim already cited; 1 the hand should make the 
 hand safe, and therefore held that the voluntary tradi- 
 tion of a thing made by one who was not its owner to a 
 third party in good faith should pass the property to the 
 latter. To overcome the severity of such a rule they 
 had to have recourse to an equitable action, which, 
 however, could not be used against innocent third 
 parties. The French law accepted this maxim and 
 amplified it, not permitting the right to pursue a thing 
 which had not been stolen or lost. There was, therefore, 
 no possessory action for such things, but the principle 
 was absolute, that possession as far as personalty was 
 concerned was as good as title. This was necessary to 
 increase facility in trade and was allowed only because of 
 universality of personalty, less by "sapit quid immobile" 
 than by the "universitas." The ancient French law 
 allowed a "complainte" for the disturbance of possession, 
 and a "reintegrande" for theft: the first presupposes the 
 Roman condition of legal possession for a year and a day 
 before the infringement; the second does not demand 
 
 1 Cf. 226 ante.
 
 MODERN LAW 545 
 
 possession for a year and a day, and according to the 
 Scholiasts could be availed of even by detainers. Is it 
 rational that the condition of a year and a day should be 
 brought down from the Roman law? Does it conform to 
 principle to accord the action of the "spoilatio" even to 
 detainers? We may notice first of all that the Roman 
 year of prescription did not regard the acquisition of the 
 right but the duration of the interdiction, although in 
 certain cases the Roman law required the exercise of the 
 right, within the year which preceded the interdiction, that 
 was based on acts done in that time or on acts affecting 
 personalty destined to pass freely from hand to hand ; as 
 in the case of the "interdictum de itinere privato" which 
 required thirty days for exercise, and in the "utrubi" which 
 presupposed possession "majori parti anni." The posses- 
 sion of a year and a day (the "saisine" of the French law) 
 is connected with the German "gewere." The "gewere 
 recht" depends upon possession for a year and a day with- 
 out interruption by the counter claimant, and is based upon 
 his silence. It dispossesses a possessor only by the proof 
 of an adverse acquisition of possession, but it does not dis- 
 pense with an oath on the justice of his possession. The 
 "saisine" was originally the same as the "gewere" because 
 they were acquired in the same way, that is, by entering 
 into possession and by inheritance, and were equivalent 
 to a possession based on enjoyment; but "saisine" had one 
 advantage that "gewere" could not give. Because getting 
 free of its feudal element and of the title of investure, it 
 was based on the conception of an abandonment, as 
 shown by silence for a year and a day, and also on the 
 conception of the presumption of property. Thus pos- 
 session is transformed into a provisional property and 
 becomes a presumption in French law, changing the 
 method of its protection from that allowed by Roman 
 or canon law. Possession is no longer viewed per se, but
 
 546 POSSESSION 
 
 in relation to property. It changes its fundamentals, 
 though maintaining the ancient methods of defense. The 
 ' 'saisine" shows, therefore, the deviation from Roman prin- 
 ciples as well as from those of reason, by which possession 
 was an institution independent and separate from owner- 
 ship, as Viti has clearly shown inhis"CommentoSistema- 
 tico del Codice di Procedura Civile." It is not right to 
 allow a detainer to have recourse to the action for theft 
 (regarding it only as a remedy against violence) since it 
 is essentially possessory, as may be seen from its his- 
 torical origin which (an extension of the "unde vi") pre- 
 supposes legal possession. Yet the detainers' right to 
 the action of spoliation cannot be denied if we only allow 
 two kinds of possession, legal and natural, as the French 
 writers have done. Civil possession would have all the 
 necessary conditions, and the natural would have none of 
 them. And hence it is clear that civil possession would 
 be confused with detention, and consequently we must 
 allow detainers an action for theft. But we must not 
 forget that logically there cannot possibly be less than 
 three kinds of possession, detention, civil possession, 
 and prescriptive possession. Between detention and civil 
 possession the difference lies in the intent to keep the 
 thing. Prescriptive possession is ordinarily charac- 
 terized by a good title and good faith, but sometimes it 
 has no need of such elements and need show only the 
 marks of publicity, undisturbed continuity, etc. The 
 action for theft, if we accept this definition, can only be 
 given to him who has legal possession. 
 
 345. Possession in Rational Law. Relative Theories. 
 But let us consider the philosophical base of the insti- 
 tution. The theories are various, but can be divided, 
 as Ihering says, into relative and absolute, depending 
 upon whether they treat it as having a principle within 
 or without. The first relative theory is that of Savigny;
 
 ABSOLUTE THEORIES 547 
 
 that the violation of the right of possession is the viola- 
 tion of the person, and that therefore the injunctions are 
 analogous to "actiones ex delicto." Cavallari, in his "In- 
 stitutiones Juris Romani," wrote that the action for the 
 right of possession was established to avoid fights be- 
 tween citizens. Rudorf , in his appendix to Savigny and 
 Serafini in his "Instituzioni," repeats that an attack upon 
 possession is a breach of public peace. Thibaut states 
 that the protection of the right of possession is based on 
 the presumption of law in favor of the "statu quo." 
 Ah rens makes the basis of possession the maxim, "Quilibet 
 praesumitur bonus et Justus donee probetur contrarium." 
 Cans, in "System der Romischen Civilrechts," and 
 Trendelenburg consider that possession indicates prop- 
 erty. Romagnosi and Zacharia, in "Handbuch des 
 Franzosischen Civilrechts," Miihlenbruch in "Doctrina 
 Pandectarum," Troplong and De Crescenzio in "Sis- 
 tema del Diritto Civile Romano," teach that the base 
 of possession is the presumption of property. Ihering 
 looks upon possession as the advance guard of property; 
 that the protection of the right of possession is as nec- 
 essary as protection of the right of property. 
 
 346. Absolute Theories of Possession. Among the 
 absolute theories the earliest is that of Cans, which 
 was followed by the others of Puchta, Molitor, Bruns, 
 and Randa. Cans thinks that the right to a thing 
 through particular will and universal will or law is 
 property, while to have it only by your particular will 
 is possession; the particular will is a substantial some- 
 thing and should have a protection at law. Puchta 
 and Walter add that possession is a right, and that 
 it is referable to the person himself. Molitor gives 
 the characteristics of possession, saying that a fact 
 without a will behind it remains in the category of 
 facts and does not take its place among rights, and that
 
 548 POSSESSION 
 
 the will, a common factor of right, brings about the 
 "jus possessions, " based on the "animus possidendi." 
 Bruns thinks that the protection of possession is founded 
 on the thought that man, through the single fact of his 
 personality, has control over things. When his will 
 to own by taking possession of the object becomes 
 effective control of anything without an owner, it estab- 
 lishes an absolute right or right of property ; but when 
 it concerns things not without an owner, it brings into 
 existence a right which yields only upon the proof of 
 property. The control of the possessor, until the moment 
 this proof is made, cannot be disturbed, and therefore 
 "possessor hoc ipso quod possessor est plus juris habet 
 quam ille qui non possidet." Randa writes that the 
 will when realized objectively, even if unjustified, must 
 have a right to appear as defendant in a court of law. 
 
 347. Criticism of Absolute and Relative Theories of 
 Possession. After deep reflection and a thorough ex- 
 amination of all the absolute and relative theories, it is 
 right to infer that in all of them there will be found one 
 identical fundamental conception, although it may be de- 
 veloped in different manners, that is, the inviolability 
 of the individual person in connection with his things. 
 Let us first compare the relative theory of Savigny with 
 the absolute doctrine of Cans, and after an accurate crit- 
 ical analysis the common principle will appear, as Pepere 
 has shown. It is true that Savigny contradicts Cans 
 because the latter does not see how particular will, some- 
 times unjust, can develop into a right. It is true, too, 
 that Cans contradicts Savigny by saying that the right 
 of possession cannot owe its origin to its violation 
 because its violation presupposes the right. Yet it is 
 undeniable that Savigny thinks the ultimate rationale 
 of the possession lies in the intimate relation between the 
 possessor and the things possessed ; wherefore, in the vio-
 
 CRITICISM OF THEORIES 549 
 
 lation of the fact of possession, though perhaps it is not a 
 right, as he says, there is a tortious change of the personal 
 position which can be remedied by the restoration of 
 the prior conditions which the violation has affected. 
 The conception of the inviolability of the person is found 
 in the doctrine of these two philosophers, with this 
 difference: that in Savigny it assumes a negative form, 
 while with Cans it is positive, very similar to the cele- 
 brated theory of Kant about the philosophic and rational 
 nature of possession. To the same conception we can 
 reduce, too, the theories of public peace and of the 
 presumption that everyone is held good and honest 
 until the contrary is proven, because the base of public 
 peace is respect of the human personality, individual and 
 collective. And in all men the elements of a rational 
 and free nature are found in their highest develop- 
 ment. The doctrine which makes possession a pre- 
 sumption of property and the bulwark of ownership is 
 reducible in the last analysis to the same conception, 
 that is, of property as the projection of the inviolable 
 person. Neither can it be argued that such a principle 
 is the origin of all rights, and therefore cannot be the 
 specific base of the right of possession, because the 
 jurist philosopher should first of all look to see if posses- 
 sion is a simple fact and one which can be a right. It 
 is not possible to begin this research without having 
 recourse to the early authorities and to the supreme 
 criterion of rights, that is, the principle of personality. 
 On the other hand this principle is the specific base 
 of the absolute control of things without an owner or 
 the relative right in things which have an owner, as long 
 as his rights are not clearly shown. This explanation 
 of Bruns is not really contradictory to the theory of 
 Cans, which also gives a specific base, because the abso- 
 lute right or full control is the effect of the realization
 
 550 POSSESSION 
 
 of the particular will recognized as a will to control by 
 society and the law; and the relative right which gives 
 rise to possession is derived, too, from the individual 
 will, protected, too, like the general will, but as absolute 
 control, except on the proof of a further right. The 
 theory of Cans cannot be interpreted otherwise if you 
 wish to give it a serious consideration. Speaking of 
 the universal will only in relation to property and not 
 in relation to possession, one would not know how to 
 give the latter any protection. 
 
 348.- Possession -is a Right. One can see how far 
 from true was the affirmation of Grotius: "Possessoria 
 judicia juris civilis sunt." Ruggieri, in his work "II 
 Possesso," reproduces this belief, holding that the pro- 
 tection of possession does not arise from its nature, from 
 its absolute virtue, but directly from positive law in 
 consideration of its external relations, which are of 
 great convenience ; that it is best to keep things as they 
 are (in doubtful cases) and leave the possessor in pos- 
 session. Possession is a fact that is protected by inter- 
 dict and creates a prescriptive right for external reason 
 of convenience and discretion. All that we have said 
 before is the most direct criticism of this manner of 
 looking upon the institution in which the author has 
 skillfully made use of the early Roman authorities. 
 
 349. Intent is Necessary to Possession. Ihering, 
 in a recent work "Der Besitzwille," has expressed a new 
 objective doctrine about the "animus domini" contra- 
 dicting the subjective doctrines of Savigny, but he 
 has not changed his basic ideas on possession. In con- 
 formity with the principles as developed by him, he has 
 studied this state of fact which has legal consequences. 
 Savigny regards intent as an essential requisite of 
 legitimate possession, but Ihering says that possession 
 is a fact. It is necessary to guard its exteriority, the
 
 INTENT NECESSARY 551 
 
 "corpus," and when this element is proved, that is, the 
 "corporalis possessio," the "animus" which is included 
 therein is proved as well. According to him, the objec- 
 tive fact is enough to prove legal possession. This argu- 
 ment can show the impossibility of legitimate possession 
 in an absolute sense because the thing is external, or in a 
 relative sense because there is a "causa possidendi" 
 which excludes it. The principle that possession has to 
 do only with the objective fact cannot be shaken unless 
 it is determined by positive law that there is simple 
 detention, unless physical possession is impossible, or un- 
 less some special circumstance is proved. Now apart 
 from the question of the proof of the intent it is clear that 
 Ihering thinks that it is essential, and shows the differ- 
 ence between detention and possession. He will look to 
 circumstances to prove that the intent cannot be shown 
 by the presence of a special "causa possidendi," but this 
 does not mean that the intent is not an essential condi- 
 tion. The intent exists for Ihering either in the "cor- 
 poralis possessio" or a presumption. In substance the 
 law accords the possessory action only to him who has 
 this intent in fact or by presumption. Ihering himself 
 says that the opinion which bases legal possession not 
 on the actual and concrete will of the individual, but 
 on a presumptive will, that is, on the will which the 
 possessor ought to have, is the same as the objective 
 doctrine, distinguishing detention from possession by 
 the "causa possidendi." But if the "causa possidendi" 
 is what causes the difference between physical and legal 
 possession, it is clear that legal possession cannot be 
 admitted except in cases in which the presumptive will 
 is shown. The simple "possessio corporalis" is no true 
 indication of legitimate possession. It is an equivocal 
 fact, because it may or may not be accompanied by the 
 intent which the possessor ought to have. How can we
 
 552 POSSESSION 
 
 presume, therefore, the mtent or presumptive will from 
 the fact of the "corpus' 1 ? Ihering does not solve this diffi- 
 culty. Neither does he agree that it is only positive law 
 which allows true possession on the failure of intent 
 or impossibility of subjecting the object to corporal pos- 
 session. From this point of view his theory is in accord 
 with those of Grotius and Ruggieri.
 
 DEFINITION OF OBLIGATION 553 
 
 CHAPTER XII 
 OBLIGATIONS 
 
 OBLIGATIONS. THEIR ORIGIN.-^THE SOURCES OF OBLIGATION 
 THEIR VARIOUS KINDS AND FORMS. THE DIFFERENT FORMS 
 AND THEIR DISTINCTION. 
 
 350. Definition of Obligation. One's wealth does 
 not consist only of property rights but includes also 
 personal rights, that is, obligations. A personal right 
 is a "jus ad rem, jus ad rem consequendam," and 
 therefore consists of "res incorporalis, quse tangi non 
 potest," while a property right is a "jus in re," and refers 
 to "res corporalis, quse tangi potest." An obligation 
 has been denned as a legal bond by which one is held 
 to do or give something. This has a different mean- 
 ing when it is applied to property rights or to the other 
 free rights of a person. The right of obligation, how- 
 ever, from this point of view, is an extension of the 
 property right. An obligation, as an element of one's 
 estate, is the obligation which looks principally to one's 
 material interests, or, as the saying goes, has a financial 
 significance. The jurisconsults, laying stress upon the 
 cause of such obligations, said, "Ea enim in obligatione 
 consistere quse pecunia lui prsestarique possunt." The 
 obligation called by Stahl and Ahrens ethico- juristic, 
 for example, conjugal fidelity, has a basis entirely moral 
 and is superior to human caprice and does not enter at 
 all into one's estate, being without financial value of 
 its own. The rational principle, which distinguishes an 
 ethico-juristic obligation from one which has a monetary
 
 554 OBLIGATIONS 
 
 value, is the limited nature of man, "unus homo, nullus 
 homo" ; man should act with other men in order to attain 
 his end. The idea of man is always the idea of a specie. 
 Through such relations he becomes self-sufficient and 
 acquires the autarchy of which Aristotle speaks. The 
 tendency to development urges individuals to a recip- 
 rocal exchange. By this every man increases his strength, 
 and in the increase of the strength of individuals lies 
 the increase of the force of the social whole. 
 
 . 351. Prerequisites of an Obligation. An obligation 
 supposes at least two persons: an obligor and obligee; 
 that is, creditor and debtor. The right to be created 
 is a direct relation between one person and another 
 and therefore is not binding except upon the parties to 
 it. The obligation does not imply a power over the per- 
 son of the obligee, but a temporary limitation of his 
 liberty in certain respects. This conception is expressed 
 in the early books as follows: "Obligationum substan- 
 tia non in eo consistit ut aliquod corpus nostrum aut 
 servitutem nostram faciat sed ut alium nobis obstrigat 
 ad dandum aliquid vel faciendum vel praestandum." 
 The object must be possible in a physical, moral, and 
 legal aspect; in other words, the obligation must con- 
 form to the laws of nature and freedom. When anyone 
 undertakes to do or to give what he is physically in- 
 capable of doing or giving, the contract is illegal. The 
 contracting parties break the natural law of free- 
 dom. They break the law of freedom if they promise 
 to do acts contrary to morality or subversive of law, 
 because freedom is acquired with truth and justice; 
 without them there is no liberty, but caprice and license. 
 The object of an obligation, as value, which enters into 
 the estate, must be reducible to money. The breach 
 of an obligation entails a penalty in damages capable 
 of pecuniary estimation. Damages include the real
 
 PREREQUISITES 555 
 
 diminution of the estate and the gain which has been 
 lost ("Damnum emergens et lucrum cessans"), and the 
 penalty includes also "omne quod interest," being co- 
 extensive with the harm done. The theory of damage 
 is applicable directly to financial obligations and ap- 
 proximately to obligations of another kind, like those 
 growing out of bodily harm or dishonorable conduct. 
 Bruns has observed that in acts which harm the organic 
 or moral activity of man it is not possible to create an 
 indemnity to overcome the harmful effects, but it is 
 not out of place to allow pecuniary indemnity for the 
 creation of the means of a new activity or different 
 enjoyment. Let us recognize, with Ihering and Wind- 
 scheid, that the judicial protection should be extended to 
 ideal interests, and that the conception of interest should 
 be full and relative, including the necessities of every 
 class of life, varying according to the time, place and 
 race, as Ihering says: "Let us not deny that money, 
 besides acting as a penalty, can often be a certain satis- 
 faction, and that from the action for damages and from 
 the money satisfaction accorded in some cases of tort 
 it is not right to argue that the object of the obligation 
 is commercial ; but let us state merely that the obligation 
 capable of affecting one's estate is ordinarily susceptible 
 of a direct pecuniary appraisement, although sometimes 
 the value of the object in question could not be exactly 
 stated in money, since sentimental feelings of the indi- 
 vidual cannot be weighed. But if an exact valuation 
 is lacking we can always put an indirect or approximate 
 pecuniary appraisement on it, which will represent a 
 penalty and a satisfaction or help in ethico -juristic 
 obligations without pretending to express their object 
 in money, and will be part of the estate though the 
 obligation had nothing to do with it." In a word, an 
 obligation generally cannot be conceived of without a
 
 556 OBLIGATIONS 
 
 quid pro quo, that is, without an end in view, and the 
 consideration is the same as the immediate or intrinsic 
 end, independent of the internal and subjective motives, 
 as we will see forthwith. 
 
 352. Five Sources of Obligation. Obligations, accord- 
 ing to modern jurists, are derived from five sources, 
 contract, quasi-contract, tort and quasi-tort, and the 
 statutes. The Roman jurisconsults recognized only four : 
 "Obligationes aut ex contractu nascuntur aut ex 
 maleficio, aut proprio quodam jure, ex variis causarum 
 figuris." The "variae figurse causarum" are described in 
 the Roman books as "quasi ex contractu, quasi ex 
 maleficio." The philosophy of law can reduce these 
 sources to two, to human will and natural juristic 
 order, because all obligations (except the contractual) 
 are not assumed freely but are imposed directly or in- 
 directly by the law of reason, as we will see. In truth, 
 quasi-contract results from the legitimate act of a man 
 who becomes bound to another without a definite agree- 
 ment. Quasi-contract is distinguished from tort because 
 it is caused by an act and by contract originating in the 
 will of one of the parties. Examples of quasi-contract 
 are the acceptance of a bill, the payment of a debt 
 of a third person, and the "communio incidens." The 
 base is the average will of man which law presumes, 
 and of which Lassalle speaks, or the presumed consent, 
 that is in harmony with the principles of equity. In 
 the acceptance for honor of a bill there is no contradic- 
 tion in speaking of a quasi-contract; one can suppose 
 the consent of the "dominus negotii." As it is logical to 
 infer that the man who wishes the end wishes the means, 
 there is an implied duty to reimburse. Rosmini looks 
 upon this form and nomenclature as absurd, not being 
 able to conceive of a mean between contract and non- 
 contract. He believes that in such form the law im-
 
 SOUNDING IN TORT 557 
 
 agines a consent and that there is in fact none, and that 
 by the principles of equity he explains obligations based 
 on defective agreements as quasi-contracts. But he 
 does not agree that the common presupposition of 
 obligations is will: this conception eliminates at once 
 all objection and shows that there is not a true "fictio 
 juris" where the just will of human nature is found. He 
 does not understand the average will of man, which he 
 confuses with the changeable and concrete will of the 
 individual, when he says that presumptive consent is 
 uncertain and cannot produce certain rights and obli- 
 gations because the "dominus negotii" is sometimes in- 
 capable of consenting through madness or infancy. The 
 average will conforms to reason. It is the will which 
 a man should have in the conduct of life. It is "sanse 
 mentis." Such a will is always certain and could be 
 found in the fool, if not being a fool he were sane, or 
 in the child if he was not such, but was an adult. No 
 other kind of will can be raised to a principle of law, 
 that is, a manifestation of reason. It is clear that the 
 obligation in quasi-contract comes directly from the 
 presumption of the consent, from the will, and indi- 
 rectly from the statutes which are based thereon. 
 
 353. Obligations Sounding in Tort. From the con- 
 ception of a natural juristic order come, too, the obliga- 
 tions which are the consequence of fraud or negligence. 
 The order infringed, the law broken, there arises a 
 necessity of restoration, which is had through penalties 
 and reimbursement for the harm done. A tort is the 
 result of fraud or harm. Negligence is a kind of quasi- 
 tort, being an infraction of due diligence ("debitum 
 diligentiae") which has caused some damage. Neg- 
 ligence differs from accident because in the former case 
 that has not been foreseen which could be foreseen, 
 but with an accident the unforeseen was unforeseeable.
 
 558 OBLIGATIONS 
 
 Tort and quasi-tort in modern times produce first a 
 penalty and then the duty to compensate. When the 
 private penalties of Roman law, by which the defendant 
 could pay the plaintiff a sum of money, were abolished 
 and the principle that a penalty is a demand of social 
 justice and a system of public law was installed, the 
 principal obligations dependent upon tort and quasi-tort 
 were no longer part of private law, as with the Romans, 
 but there was only the accessory obligation (called 
 Nicoline, after the Roman family of that name) which 
 looks to the interests damaged. From the natural 
 juristic order, however, there arise directly some obliga- 
 tions of a monetary order. It is not true that all the 
 obligations originating in statutes belong to public law 
 because statutes can establish obligations for the 
 interest of private utility, and declare rights which can 
 be acquired in the strict sense of the word. 
 
 354. Divisions of Obligations with regard to their 
 Subject and Object. Obligations, to no longer consider 
 their origin (from which point of view they are vol- 
 untary and involuntary), are divided into various kinds 
 according to their subject and object, the tie created 
 and the legal action that protects it. The subject 
 can be a single debtor and a single creditor, or several 
 debtors and one creditor, or vice versa, or several debt- 
 ors and several creditors. Obligators from this point 
 of view, and especially in the case of the number of 
 subjects, are either (pro rata) several or (in solidum) 
 joint. In several obligations the debtors and the creditors 
 have reciprocal rights and duties. Itis not one, however, 
 but is divided into as many parts as there are parties to 
 its obligation. The joint obligation is one unity essentially 
 subjective by which each of the debtors has the right of 
 demanding full performance by the creditors, and each 
 one of the creditors must perform the entire obligation for
 
 SUBDIVISIONS 559 
 
 the debtor or debtors. The Roman law made a differ- 
 ence between the "obligatio corporalis" and the "obliga- 
 tio in solidum" because in the first there is a common 
 obligation, while in the second there are several persons 
 held to the performance of the entire duty imposed upon 
 each of them. If in the first the creditor pays, he frees 
 his co-creditors acting in the cause of all and cannot claim 
 a right of contribution as in the joint obligation; and if an 
 obligation becomes absolute by a judgment against one, 
 all his fellow contractors are free, something which does 
 not occur in a joint obligation. A distinction somewhat 
 analogous is made by the jurists who follow the theories 
 of Molineo, and who say that there are joint and joint 
 and several obligations. The first are based on an explicit 
 agreement and on a presumed contract with the parties 
 "ad servandam et perpetuandam obligationem" ; the 
 second arise from a fact or statute and do not presume 
 the agreement. The result common to both kinds is 
 the "deberi in totum," but the prescription by a debtor 
 or creditor in the joint obligation is a defense for all, and 
 a plea of abatement against one obligation is good against 
 all, while this is not true of an imperfect joint obligation. 
 The different results depend upon the reciprocal agree- 
 ment between the parties presumed in the case of a 
 perfect joint obligation but not permitted in the im- 
 perfect one. 
 
 355. Subdivisions of Obligations as they regard Objects. 
 As to the object, obligations can be divisible, indivisible, 
 alternative, and potential. An obligation is divisible if the 
 promise is capable of being divided naturally or legally ; 
 it is indivisible if the thing or act is not susceptible of 
 division (as a promise to give a horse), or if, though capable 
 of division, the parties have not so considered it (as the 
 contract to build a house). Indivisibility is an objective 
 unity and is enforced against the heirs. In this it differs
 
 560 OBLIGATIONS 
 
 from jointness, which is extinguished when the subjects 
 to which it belongs are destroyed. The writers who 
 follow Molineo are wont to construct an obligation per- 
 fectly indivisible and an obligation imperfectly indivisi- 
 ble. The former arises from nature and agreement and 
 has in consequence the "deberi pro parte sed in totum." 
 It should be "pro parte" because the parties do not 
 constitute a single unity, as in the joint obligation, and 
 nevertheless should be one "ratione rei et facti." On 
 demand against one of the creditors a good defense should 
 bind all the debtors in the perfect indivisible obligation, 
 since no debtor can preserve his part of the right with- 
 out preserving that of his fellows. The imperfect indi- 
 visibility is established "ob incongruitatem solutionis," 
 that is, to avoid the harm which would be caused by a 
 divided payment; and exists only between the heirs of the 
 obligee and not among the heirs of the obligor, which 
 proves that there cannot be a full "individuum soluti- 
 onis," as Pothier believes. Here the single payment 
 alone is not divided because its division would do 
 harm. The agreement is alternative if there are 
 several distinct things of which the obligee must 
 necessarily only do one, and he has the election. In 
 the potential agreement the objects are not in the 
 consideration and the obligee can at his pleasure do 
 what he wants. 
 
 356. Kinds of Vincula in Obligations. As to their 
 obligations, agreements are simple, conditional, modal, 
 and penal. Simple agreements are without any pro- 
 visions as to the means. A condition implies a future 
 or uncertain event upon which the obligation depends. 
 Conditions are various according to the quality of the 
 event, the effect which they produce, and the manner in 
 which they are shown. In respect to the quality of event 
 conditions are affirmative if its happening is necessary
 
 KINDS OF VINCULA 561 
 
 to the contract, negative if it is necessary to the contract 
 that it should not happen, potential when the event 
 depends upon the will of the obligor or obligee, casual if 
 it depends upon chance, mixed when it depends partly 
 upon the will of the third party and partly upon chance. 
 Of course, they can be possible or impossible physically, 
 morally, and legally. An agreement is not binding which 
 depends upon a mere potential condition, that is, from 
 the "si voluero" of the obligee, or upon some insignificant 
 act of his that is confusible with a "si voluero"; for 
 example, "I will give you a hundred dollars if you look me 
 in the face." Ageements are void which are based upon a 
 condition that is impossible from any of the three points 
 of view, but the agreement is valid if it is based upon 
 a condition of not doing an impossible thing, because the 
 condition must be fulfilled. A negative immoral condi- 
 tion is admitted because the law cannot disregard the 
 promise of an advantage, accepted to induce the other 
 party not to do harm. An affirmative immoral condition, 
 if casual, should be recognized as legal as to the obligee, 
 since it depends upon the act of the third party and is 
 for him the same as any other event. As to the result, 
 the conditions are suspensive or revocatory if an acquisi- 
 tion of a right or the carrying out of the obligation de- 
 pends thereon. The first keeps the obligation in suspense 
 until the fulfillment of the condition. When the event 
 happens the obligation is considered not as placed upon 
 some condition, but as originating from the contract. 
 If the event does not happen the duty is considered as 
 never having existed. The second does not hold over 
 the execution of the obligation, but upon the happening 
 of the event the obligation is considered as not having 
 existed at all, and the obligor must return what he has 
 received. In respect to the forms of conditions they are 
 express, tacit, or implied. If the end of the contract 

 
 562 OBLIGATIONS 
 
 depends upon a future and certain event it does not 
 affect the obligation, but merely retards its execution. 
 A penal clause is a kind of antecedent liquidation of 
 damages. It is used when the contractor wishes to insure 
 the fulfillment of the contract and promises something 
 in case of failure or delay. The penal clause is an acces- 
 sory, and therefore the nullity of the contract involves the 
 nullity of the clause itself. 
 
 357. Obligations in Civil and Natural Law. As to 
 actions, obligations are classified as civil and natural. 
 Civil obligations are, of course, founded on natural 
 law, (on which positive law is moulded,) as well as 
 the natural obligations, and are fully recognized by the 
 statutes which give a right of action. Natural obliga- 
 tions are founded also on civil law, which recognizes 
 them without giving them full effect, and protects them 
 only by way of exceptions when their immediate origin 
 is rational law. Natural obligations differ from moral 
 duties ("officia") which obtain their strength only from 
 morals. These, from the viewpoint of positive law, are 
 incomplete obligations, not absolutely inefficacious, born 
 of the need of recognizing in certain relations legal pur- 
 poses and reasonable restraints, but which cannot be 
 given, for many causes of social interest, a right of action. 
 In natural obligation we can recognize the "vinculum 
 sequitatis" and "debere natura," as the old Roman law 
 said, and the execution of the promise is regarded not as 
 an act of moral justice, but as the fulfillment of a legal 
 duty of a "debitum naturale." It excludes, therefore, 
 the recovery of what has been paid. There is no possi- 
 bility of restitution in cases of filial ingratitude or pride. 
 Certainly this "vinculum aequitatis," which is a "vincu- 
 lum juris" in the philosophy of law, would be extortion if 
 not kept within confines of a determinate nature by posi- 
 tive law. Personality itself, in order to be the effective
 
 EXTINGUISHMENT 563 
 
 subject of rights and duties, has need, as we have seen, 1 
 of a civil investiture. There is no need of wonder if such 
 a recognition is given to the "obligatio naturalis," 
 which does not signify that there is no other base for the 
 obligations than that of civil law. Rational law has no 
 practical effect without the recognition of the statutes, 
 but this does not mean that law and personality are crea- 
 tions of the statutes. Natural obligations have a foun- 
 dation beyond positive law in the sense that they are 
 derived from the "recta ratio," which is shown in our 
 civil statutes, but which nevertheless does not arise from 
 them. This indicates a superior source, but one not 
 absolutely extrinsic and transcendent, because natural 
 law is developed in positive law and is connected with 
 it as the true interpenetrates with the certain. From 
 another aspect the "obligatio naturalis" lies in positive 
 law. It is founded on the statutes because it can have 
 more value as an exception. Windscheid thinks that it 
 represents the inorganic part of the legal system, and he is 
 right from an historical point of view. The ancient "jus 
 civile" was restricted, narrow, and ironbound, taking no 
 account of many relations which were really juristic. 
 Little by little these relations, regulated at first by the 
 "jus gentium" or the "jus naturale," became part of the 
 "jus civile." The statement by Windscheid, considered 
 in itself, is not the rule, because the incompleteness of 
 the "obligatio naturalis" depends upon its own purpose 
 and nature. We can say that its perfection consists in 
 its defective origin by which it cannot be equal to 
 the "obligatio civilis." 
 
 358. Extinguishment, (a) Payment. Obligations are 
 extinguished in ten ways: The first is the payment 
 defined in the strict sense as "prseistatio eius quod 
 in obligatione est." The statutes, to promote the in- 
 
 1 Cf. 170 ante.
 
 564 OBLIGATIONS 
 
 terests of trade and render redress easy against the 
 debtor, who paid in order to be free of the contract, 
 have introduced subrogation, consisting in a fictitious 
 settlement by which a debt extinguished by the pay- 
 ment of a third party is considered as existing to the 
 latter's advantage, who can use all the rights growing 
 out of the contract to recover what he has paid. 
 
 (b) Novation. The second way of extinguishing a con- 
 tract is a novation. "Novatio est prioris debiti in aliam 
 obligationem transfusio atque translatio." Novation 
 can be subjective if it concerns the subject of an agree- 
 ment, objective if it concerns its object. Subjective nova- 
 tion takes place when a new contractor is substituted for 
 the old towards whom the creditor is free, or when a new 
 creditor is substituted for the former one who is freed. 
 In the first case, the consent of the creditor of the former 
 debtor and of the new debtor are needed. It is different 
 from the extinguishment of a debt which needs only the 
 consent of the granting creditor and the grantee, and pro- 
 duces no novation. In the second case there can be the 
 delegation or appropriation. Delegation needs the con- 
 sent of the obligor of the new and old obligee, while 
 appropriation needs only the consent of the debtor and 
 new creditor. The principle that governs the require- 
 ment of consent in respect to persons in novation is 
 always placed in the protection of the reasonable in- 
 terests of the parties who could be harmed by the change. 
 Objective novation is where a new object is substi- 
 tuted for the old object and contract, changing the 
 modality of the contract. 
 
 (c) Release. The third form of extinguishment is a 
 release of the promise or gratuitous abandonment of it. 
 It is really a gift, and therefore needs mutual consent. 
 
 (d) Substitution. The fourth form of extinguishment 
 is substitution. "Debiti et crediti inter se contributio."
 
 EXTINGUISHMENT 565 
 
 The promises should be of the same kind because "aliud 
 pro alio invito creditore salvinequit," and should be liqui- 
 dated and mature ; that is, the certainty of the "quantum 
 et an debeatur" should not be lacking and should not be 
 dependent upon conditions or events. Substitution (the 
 utility of which was discovered by Pomponius: "Interest 
 nostra potius non solvere quam solutum repetere") ac- 
 quires in modern times the greatest importance, and 
 becomes in large cities the most important method of ex- 
 tinguishment. Civilized people go through three stages; 
 at first they adopt a metallic coinage, then a mixed coin- 
 age, and when they have fully developed, they limit the 
 issue of notes and adopt a system of extensive credit. 
 Luzzatti has correctly compared the economy of circu- 
 lation in its last phase to a pyramid whose ample base 
 is of metal, and whose apex is of bank notes, while the 
 whole body of the edifice is built of commercial paper, 
 deposits, and substitutions. The tendency of bank notes 
 to economize metallic coinage is not so great as that 
 possessed by other kinds of credit, especially through the 
 system of substitution, represented by the circulation 
 of checks assigned in the form of orders to pay either by 
 a "clearing house" or house of exchange. Patterson, 
 Bagehot, and Pelgrave show by statistics the law of 
 English trade in which through bank notes substitution 
 takes the place of credit. The sum issued by the Clear- 
 ing House in 1844 did not surpass forty times the total 
 of the paper issued. In 1872 it was a hundred and 
 thirty times as great. And yet England and the United 
 States were at one time countries run mad with paper 
 money. 
 
 (e) Confusion. The fifth method of extinguishment 
 is confusion in one person of the two qualities that are 
 mutually destructive ; that is, the quality of debtor and 
 creditor.
 
 566 OBLIGATIONS 
 
 (f) Destruction. The destruction of the thing which 
 is owed or an event which renders the fulfillment of 
 the contract impossible without fault on the part of 
 the debtor, an event such as would absolutely destroy 
 the object, is the sixth manner of extinguishment. This 
 destruction is not extended to contract with objects of 
 a general nature because "genera numquam pereunt." 
 This sixth method is based upon the failure of the ob- 
 ject of the contract. 
 
 (g) Rescission. The seventh method is annulment 
 or rescission. Annulment is produced by an inherent 
 vice in the contract. Rescission depends upon breach. 
 The obligation is gone in the case of annulment. Rescis- 
 sion can result in the avoidance of the obligation or its 
 continuance with the payment of the part due. 
 
 (h) Fulfillment. The eighth method is the fulfillment. 
 
 (i) Prescription. The ninth lies in prescription. 
 
 (j) Death of Debtor. The tenth and last is the death 
 of the debtor with the obligation unfulfilled, where he 
 was bound to do or not to do something in a relation 
 established on personal considerations. In agreements 
 of giving, the death of the debtor is not a cause of 
 extinguishment, because the thing can be given as well by 
 his heirs. With the death of a man all those relations 
 end which are joined in a most intimate manner to him, 
 but those relations continue which are financial.
 
 ETHICAL ORIGIN 567 
 
 CHAPTER XIII 
 CONTRACT AND ITS FORMS 
 
 THE NOTION OF CONTRACT. ITS PHASES AND BASIS. ESSEN- 
 TIAL REQUISITES. VICES OF CONSENT AND SOME RECENT 
 THEORIES. THE INTERPRETATION OF CONTRACTS. THEIR 
 CLASSIFICATION; AND THE DOCTRINES OF KANT AND TREN- 
 DELENBURG. 
 
 359. Ethical Origin of Contract. Contract arises 
 from voluntary obligation and comprehends all the part 
 of private law that is called from it "jus voluntarium." 
 A contract is clearly connected with ownership because 
 the will of the owner is the untrammelled disposer of 
 the object and can keep or give it away or can provide 
 for his successor by an agreement. The agreement is 
 made by the free will and consists in the exchange of 
 the utilities of life. Its rationale is found in the limita- 
 tions of human nature and in the tendency to autarchy, 
 as we have said before. 1 This proves once more that 
 the ethical relations of a higher order, although not 
 foreign to the will, cannot be ultimately explained 
 through contract, because the latter has in it a factor 
 of caprice and accident and is influenced by utility. 
 
 360. Definition of Contract. A contract according 
 to the Roman jurisconsults is "duorum vel plurium in 
 idem placitum consensus." We must note, however, that 
 two people can agree theoretically and still there will be 
 no contract. Hence it follows that the addition by 
 Heineccius to the Roman definition is good, that is, "de 
 re danda vel facienda vel prsestanda." Modern writers 
 
 1 Cf. 347 ante.
 
 568 CONTRACT AND ITS FORMS 
 
 define a contract as the agreement of two or more per- 
 sons for a legal purpose that has a financial value. 
 Among these, Rosmini looks upon a contract as an 
 agreement and legal effect of the corresponding acts 
 of two persons, one of whom, the owner of a right, vol- 
 untarily frees himself from the legal chain (with or with- 
 out conditions) so that the other may become owner of it 
 if he wishes; and the other makes an efficient acceptance, 
 fulfills the conditions, if any, and appropriates the right. 
 A contract, therefore, is an accepted promise; a promise 
 without acceptance is the desire to give, to do or not to 
 do something. A promise according to the Roman law 
 is "pollicitatio." "Pactum est duorum consensus atque 
 conventio, pollicitatio vero solius offerentis promissum." 
 In three cases the "pollicitatio" is enough to obligate 
 the promisor because of the particular favor given by 
 the statutes to certain institutions, that is, when the 
 promise creates a dowry ("dos") or is in favor of a 
 municipality to obtain an office or for some religious 
 purpose, such as an offering to God. 
 
 361. History of Contract. In primitive times con- 
 tract did not and could not have the importance which 
 it has to-day. Primitive law was essentially imperative 
 because it had to coerce men into obedience to the 
 statutes towards which they were most hostile. For 
 this purpose it needed a strong hand. Centuries of 
 slavery preceded through historical necessity the cen- 
 turies of liberty and personal initiative. The community, 
 not the individual, was the base of legal government 
 in primitive times. The individual did not create rights 
 and duties of himself but rather as the head of a tribe, 
 village community, or family. Contracts were binding 
 between the heads of particular communities. They 
 were not easy of creation, being surrounded by many 
 formalities, because the mind was deep dyed with sen-
 
 HISTORICAL PHASES 569 
 
 sations and fancies which took the place of reality, 
 as we have said before. 1 Formality and ceremony, 
 absolute necessities, had the greatest importance because 
 they gave strength to the promise or showed the absence 
 of consent. Good faith had but little power, says Maine, 
 for in the Homeric poems the deceitful cunning of Ulys- 
 ses is praised as fully as the gallantry of Achilles. If bad 
 faith is victor in our day, we must remember the in- 
 definite extent and immense complexity of modern social 
 relations and the increase of objects and opportunities 
 for it. 
 
 362. Historical Phases of Contracts. Maine also 
 shows clearly the three phases of contract, that is, the 
 phase in which the contractual idea was confused with 
 the transfer of title, that of the separation of contract 
 from pacts, and the other of the absorption of contracts 
 in agreement. The Romans at first called a contract a 
 "nexum" and the "nexum" involved the "jura in re" 
 and was the means of transferring property. Subse- 
 quently the "nexum" referred to contract only, while the 
 "mancipatio" was applied to ownership. The same de- 
 velopment affected the "nexum" and the "patria po- 
 testas," which originally included in its authority the 
 son, wife, and property and then was restricted to its 
 narrow use of "mancipium" and "manus." When con- 
 tract was separated from the transfer of ownership it was 
 looked upon as a pact accompanied by an obligation 
 and was distinguished from a mere pact which had no 
 obligation. After the unity of initial vagueness there 
 came the antithesis of development. Of the four kinds 
 of contracts in Roman law, the eldest was the verbal, 
 of which the "stipulatio" is typical, consisting in a ques- 
 tion by him who could accept a promise, and the answer. 
 Written contracts appeared later, made by writing the sum 
 
 l Cf. 26$ ante.
 
 570 CONTRACT AND ITS FORMS 
 
 due into an account book, and of still later date were real 
 contracts, in which the execution of one part for equitable 
 reason imposed the duty of fulfillment of the other. Last 
 came the consensual forms: pledge, partnership, sale, and 
 lease. The consensual contracts were "jure gentium" 
 and developed when Roman commerce became general 
 and regular. The Roman jurisconsults nevertheless be- 
 lieved that this kind of contract "was primitive, governed 
 by the belief in the historical precedence of the "jus naturae 
 et gentium" before discussed. 1 Let us here observe that 
 what is more spiritual and universal cannot appear at 
 the beginning but at the end, as is proved by the eternal 
 history of men and people. In the third period, the 
 pact absorbed the contract by the progress of the "jus 
 naturae." Pacts were entitled to an equitable action 
 which supposed a consideration but did not have the 
 form of contract, and the "obligatio naturalis" was re- 
 cognized and protected as an exception. In the Middle 
 Ages the Roman conception of the third period became 
 more explicit and the difference between pact and con- 
 tract disappeared, especially by the application of the 
 law of the "Longobardi," through which arose the "actio 
 de nudis pactis." Tacitus had already said of the Ger- 
 mans, "vir bonus solis verbisobligatur." Every agree- 
 ment added to a contract "in continent! aut ex 
 intervallo" gave a right of action. A strictly legal 
 contract was not clearly distinguished from an equitable 
 one. All contracts were thought to be of good faith 
 and it was universally admitted that fraud or deceit 
 vitiated them. 
 
 363. Duty of Keeping Contracts. The duty of 
 keeping a contract is not only moral but legal. Its 
 breach is a breach of good faith and is harmful to 
 acquired interests and rights. The promisee gives 
 
 l Cf. 153 ante.
 
 DUTY OF KEEPING 571 
 
 up his property and transfers it into the power of 
 the promisor and has a right, therefore, to the ful- 
 fillment of the latter's obligations, through mutuality. 
 And the promisor has the right to the promised objects 
 which have already become his by the meeting of the 
 two wills. The old authorities said that if the promisor 
 retracted his promise he would wish to join to himself 
 something legally belonging to another, and the promisee 
 who wished to rescind would subject the promisor to 
 a new acquisition in spite of himself; in both cases there 
 would be clear injustice. Now when Fichte states that 
 the obligation for fulfilling a contract arises when 
 one party begins to act under it, he follows the untrue 
 theory that executory obligation is exclusively moral 
 and not legal. Fundamentally, the obligatory force of 
 contract lies in the pre-agreement of the parties con- 
 trolled by the rules of equity and justice. Schlossmann, 
 in "Der Vertrag," argues against this that this force 
 is not a derivative of will because the promisor might 
 not intend to be bound as in obligations in which the 
 words do not correspond to the true will of the obligee. 
 For example, he who contracts as a joke is bound, if his 
 declaration makes the obligor believe that it is a serious 
 proposition to do or to give. So is he who contracts with 
 a mental reservation or signs papers prepared by others 
 without reading them. Schlossmann has not considered 
 that by the 'meeting of the minds in the contract there 
 is formed a common will which is law between the 
 parties. The promissor cannot destroy the will to be 
 bound because it needs mutual agreement to destroy 
 the chain which has been forged. If some obligations 
 in conventional matters are created simply by statute, 
 which represents the principle of justice and equity, 
 and are not voluntary (although they arise on occasions 
 of a voluntary act either deceitful or fraudulent) we can-
 
 572 CONTRACT AND ITS FORMS 
 
 not on this account deny that the other obligations owe 
 their origin and force to the wills of the parties. In the 
 examples given by Schlossmann there is an obligation 
 through the imprudence or bad faith of the promisor 
 or subscriber: "Nemo ex sua culpa beneficium trahere 
 debet; factum quique suum non adversario nocere 
 debet." On the other hand, there is the maxim, "Male- 
 tiis non est indulgendum." The belief which we have 
 emphasized is closely connected with the broader but 
 inaccurate theory on the subject of juridical acts, 
 many of which are contractual. We know that such 
 acts are a manifestation of will with the object of 
 making, changing, or destroying a legal relation; now 
 it is stated that the legal effects of the act of man do not 
 depend upon private will, but upon the statutes. An 
 act of man is a fact, to which the statutes, without con- 
 sidering the intent, and therefore without regard to 
 the legality or illegality of the purpose, attribute certain 
 definite consequences. There is something true in this 
 doctrine in that the statutes recognize and regulate legal 
 consequences and acts of men, according to a criterion 
 of natural causality and social efficiency. But the stat- 
 utes do not create legal consequences, as they do not 
 create either will power or the acts resulting therefrom; 
 their proper scope being limited to recognition and punish- 
 ment. In life, individual acts and purposes are devel- 
 oped which the law recognizes and regulates, and some 
 acts and purposes are accomplished which the law 
 forbids, whence the unavoidable difference between legal 
 consequences and illegal acts. In regulating such conse- 
 quences, the law, influenced always by their natural caus- 
 ality and social efficiency, allows some wished for by the 
 parties, prohibits some, and further adds others. Law 
 tends through regulations to realize the will of man, but in 
 some cases the effect foreseen is not legally possible. The
 
 ESSENTIALS OF CONTRACTS 573 
 
 bequest of the usufruct of perishable things, for example, 
 cannot be strictly allowed in the Roman law, therefore 
 the owner of the usufruct was given property in the 
 things themselves, but he was obliged to give bond for 
 restitution of it or its equivalent, therefore there were 
 legal effects of which the grantor had no knowledge and 
 which were not especially wished for by him. 
 
 364. Essentials of Contracts. The duty to keep 
 one's contract depends upon four essential requisites, 
 that is, upon capacity of will, free consent, the possi- 
 bility of carrying out the promise, and the considera- 
 tion. The contractor should be a person who has 
 the effective use of his reason and can legitimately 
 carry out his intentions, therefore lunatics, drunkards, 
 minors, and in general those who must subject their 
 will to the will of others, have not the right or 
 capacity to contract. The consent must be deter- 
 minate, that is, it must be an act of firm intention to 
 alienate or acquire. It must necessarily be uniform in 
 both parties, otherwise the "idem placitum" would not 
 exist, and there would be no mutuality. This demands 
 the contemporaneous meeting of the minds of the 
 parties. Conversely, if diverse desires are shown, there 
 is no true consent, as in the example in which one 
 answers negatively to an offer and later changes his mind 
 and accepts; in this hypothesis it cannot be known 
 whether he who has made the offer still holds open his 
 proposition, and a second answer must be received be- 
 fore there is a contract. Through ratification a consent 
 made postfactum has the strength of a contemporaneous 
 promise. A ratification has such an effect naturally 
 and not through any positive institution, as can be 
 seen from analysis. Consent either express or tacit 
 must be clear. Admitting that the consent must be 
 determinate, uniform, reciprocal, contemporaneous,
 
 574 CONTRACT AND ITS FORMS 
 
 and clear, according to the analysis of Rosmini and 
 Ptolemy, yet if it is not free it has no legal effect. 
 Consent is free when the activity of man, by which it is 
 effective, works without obstacles, for example, mistake, 
 fraud, or duress, to impede its exercise. Here the word 
 free has a very broad and generic sense. 
 
 365. Offer and Acceptance. The requisite of con- 
 temporaneous consent gives rise to the question of 
 when the contract is perfected, when offer and accep- 
 tance cannot take place simultaneously. Are such 
 contracts made from the moment of acceptance or 
 when the notice of acceptance is brought to the offerer? 
 Let us follow out the theory that the contract is bind- 
 ing from the time in which the acceptance is made known 
 to the offerer. The consent is the meeting of two minds 
 or the agreement in the "idem placitum." This meeting 
 is not blind temporal coincidence, but rather their inter- 
 penetration not possible without conscious effort. The 
 minds unite only in the consciousnesses of the persons 
 who wish to make them unite, and manifest this desire by 
 definite acts. If, when they are in the same place, words 
 spoken and understood by the contractors give rise to 
 an obligation, a letter or telegram of acceptance must 
 be received by the offerer, if he is absent, because there 
 is an "obligatio mittentis seu scribendis." Suppose, in 
 the case of people contracting face to face, that the offerer 
 was physically incapable of understanding the answer or 
 the words of the offeree, it is evident that the contract 
 would not be complete until such an understanding was 
 brought about. So, if the offerer has not received notice 
 of acceptance, there can only be a "propositum" without 
 an obligation. A letter or telegram from the offerer are 
 always inanimate things and cannot be considered as 
 agents to receive and acknowledge the acceptance. We 
 cannot allow a contract to exist where one of the con-
 
 OFFER AND ACCEPTANCE 575 
 
 tractors does not know of the acceptance of the other, 
 and therefore has no knowledge of his own obligations. 
 Offer and acceptance are necessary to a contract, and 
 they should be governed by the same rules. The offer 
 creates an obligation when it is known and accepted by 
 him to whom it is addressed; the acceptance is binding 
 only after it has been brought to the knowledge of the 
 offerer. There is no need for introducing a different 
 rule for the two parties, binding the offerer from the very 
 beginning and letting the offeree have free foot as to ac- 
 ceptance or refusal. Justice is preserved in the system 
 which we have defended because the offerer can revoke 
 his offer as long as the offeree knows nothing of it, and 
 the offeree can withdraw his acceptance until it has reached 
 the offerer. As soon as the notice of acceptance has 
 reached the offerer, however, the two minds have met 
 and interpenetrated and the contract is made, because 
 the two minds have met and fused and there is no reason 
 to give another notice to the offeree, thus going on in 
 an endless chain. Under the principle that the contract 
 is made when the acceptance is known by the offerer, 
 we must make some exceptions commanded by reason 
 and by the nature of things themselves. In the first 
 place, it is understood that this rule is not applicable 
 where the offerer has expressed or implied that he would 
 assume the obligations before hearing. Theory teaches 
 us that in unilateral promises or contracts we must pre- 
 sume such an intent. In contracts of pledge or deposit, 1 
 the sending of the object, its receipt and retention, with- 
 out refusal, imply its acceptance. This is not the case, 
 
 1 The words used by our author as examples of contracts for goods are 
 "mutuo," "commodato." "pegno,"and "deposito." A mutuum is a loan 
 of consumable goods which the borrower can use and return in kind. A 
 commodatum is where there is a loan for use by the borrower who is to 
 return the same goods. A pegno is a common law pledge. A deposit is 
 where an object is loaned for custody and care, but the custody is the 
 more important.
 
 576 CONTRACT AND ITS FORMS 
 
 however, in some consensual contracts, bailments for 
 work, and agencies, 1 though the contractor to whom 
 the offer is made immediately carries out his part. This 
 principle is not applicable in certain urgent transactions 
 of business life through force of custom. Contracts 
 made over the telephone are not made between people 
 at a distance, because the contractors are in direct means 
 of communication in spite of the distance between 
 them. The presence of the contractors should not be 
 understood in an absolute manner implying that they 
 should see each other and study one another mutu- 
 ally from head to foot, because it is enough that their 
 minds be in accord while making the contract. 
 
 366. Fraud and Mistake. Mistake is a false belief 
 about the contract into which a contractor falls of 
 his own accord; fraud is mistake caused by the 
 other's trickery or deceit. Fraud, the old authori- 
 ties teach, differs from mistake only in the source 
 from which it is derived, but is fundamentally 
 the same as mistake, both being reducible to an 
 untrue belief. If the mistake is about the substance 
 of the object or an accidental quality considered as 
 essential by the parties, or about the person without 
 whom contractor would not have been entered into the 
 contract, the contract is void under the old Roman 
 maxim, "Non videntur qui errant consentire." Mis- 
 take about an accidental quality (not considered as 
 essential by the parties) does not render the con- 
 tract void, but gives rise to indemnity for the difference 
 between the terms of the contract and the contract as 
 carried out, for nobody can enrich himself to the harm 
 of another. Fraud practised by one of the contractors 
 
 'The words used in the original text are "mandate" and "commis- 
 sione." A mandate is the same as a deposit except that the care is 
 more important than the custody. A commission is a common law 
 agency.
 
 DURESS 577 
 
 or by a third person with his knowledge, if it is such 
 as to induce the contract, is an even stronger reason 
 for its invalidity, because its enforcement would be a 
 manifest injustice. The contractor who' is a victim of 
 cunning can demand the nullification of the contract and 
 reimbursement for any damage suffered. The fraudu- 
 lent contractor cannot do this, otherwise both would 
 be placed in the same legal position with an evident un- 
 balancing of the scales of proportion, which is the law. 
 
 367. Duress. Duress can be either physical or 
 moral: the former makes a man submit like a 
 machine, and excludes all meeting of the minds be- 
 cause the license of him who uses duress is absolutely 
 dominant; the second can be exerted by depriving 
 the victim of the use of his mind and free will, thus 
 rendering him incapable of giving a valid consent. 
 If the fear is not such as to destroy the intelligent 
 use of the mind and free will, the consent must be 
 considered as valid, but in this case there is injustice 
 on the part of him who desires to enforce the con- 
 tract, and the other contractor should be allowed to 
 rescind or proceed with the contract. The fear must 
 be real, "non metus vani hominis," and must be such 
 as would induce a reasonable man to enter the contract. 
 The severe Roman law gave no remedy to him who made 
 a contract under force or violence. Later, the pretorian 
 equity allowed a tempering control under the "exceptio 
 quod metus causa." It is clear that a statute should use 
 great precaution and assume the medial way, that is, 
 should not favor the abuse of moral influence or encour- 
 age moral cowardice. 
 
 368. Contract is the Meeting of the Minds. It 
 may be useful to develop a little more at length the 
 above conception of error, fraud, and duress. There 
 are some German jurists, as Schlossmann, Bahr, and
 
 578 CONTRACT AND ITS FORMS 
 
 others, who base the validity of contract entirely on the 
 words of the contractors and deny that the State can 
 exercise a right of nullification, in the first place, because 
 the declared will is not understood to produce of itself a 
 juristic change, but rather visible or audible signs by 
 which the other is persuaded of the existence of a will to 
 make the indicated change. Windscheid, in the "Archiv 
 fur Civilistische Praxis," disagrees with these jurists 
 and shows with little difficulty that the declarations of 
 the parties of their intention becomes external and com- 
 prehensive. It would be strange if the parties, in entering 
 into relations with each other, only produce sound waves 
 or come together only in such a way as to perceive light 
 waves in place of understanding one another and of 
 agreeing and creating rights and duties. It is clear they 
 can move, speak, or write, but their movement, words, or 
 gestures are means or signs of their thought and will, 
 through which the transmission of rights is made and 
 understood. Bahr says that a contractor who has fallen 
 into a mistake knows that the other must be governed 
 by his words, and therefore consents to their apparent 
 meaning. He treats good faith and the importance of 
 trade with such consideration that he would obli- 
 gate him whose signature has been gotten by fraud. 
 He adds that everyone in certain cases (as in that of 
 a mental reservation) admits the efficacy of statements 
 which do not conform to the will. Bahr has not consid- 
 ered that a contractor who is a victim of mistake has not 
 intended to make the declaration different from the one 
 in his mind, which conforms to his real will, and intends 
 that the other contractor should be governed by what 
 he supposes his statement has been, and does not con- 
 sent in the least to the appearance of what he says. Good 
 faith and commercial interests should not be made to 
 prevail against the law which (in order to protect the
 
 VOID AND VOIDABLE 579 
 
 interest of the bona fide debtor or endorsee) does not 
 recognize the liability of him in whose name a receipt 
 or a commercial paper has been forged. The rational 
 principle that a grantee cannot have greater rights than 
 his grantor is not logically reconcilable with the theory 
 advanced. The grantee in good faith has not greater 
 rights than the guilty or forging grantor ; that is, he has 
 no right and consequently the appearance has no weight. 
 In law, a mental reservation has no effect because it is a 
 purely internal and unexpressed volition. Thus it can be 
 looked upon as an example of the "idem esse et non esse," 
 for it is impossible that the will should be self-contradic- 
 tory. A declaration is an act of will. It is the will made 
 sensible in determinate form and it cannot be coexistent 
 with a mental reservation which negatives the act. 
 
 369. Void and Voidable Contracts. The French 
 jurists divide legal mistakes into mistakes which do 
 not give rise to consent, called "ostative," and into 
 those which destroy it. The Roman jurisconsults saw 
 a logical difference in the error in corpore, subsisting 
 in the mistake of one thing for another, and the error 
 in substantia, which was a mistake of the material of the 
 contractual object. Both mistakes brought about the 
 annulment of the contract according to the statement of 
 Ulpian: "Ego me fundum emere putarem cornelianum, 
 tu mihi vendere sepronianum putastis, quia in corpore 
 dissensimus, emptio nulla est. Inde quaeritur si ipso 
 corpore non erratur, sed in substantia error sit, ut puto 
 si acetum pro vino vendat, ses pro auro, vel plumbum 
 pro argento nullam esse venditionem puto quotiens in 
 materia erratur." In both cases there is an "aliud 
 pro alio." The error in corpore corresponds to the 
 "ostative" mistake of the French, and the error in 
 substantia to the mistake which destroys consent. In 
 the philosophy of law, a distinction which has only a
 
 580 CONTRACT AND ITS FORMS 
 
 logical or intellectual value has no weight, because the 
 two kinds of mistake are always reducible to an essential 
 mistake, one concerning the object of the contract, 
 about which the parties have exercised their wills or with- 
 out which they would not have been in accord, that is, 
 upon the substance of the thing, not understood of itself 
 and objectively, but as it was thought of by the wills of 
 the contractors. There can be no doubt that such an 
 error voids consent, the effect of knowledge and free 
 will, and that it therefore voids the contract. And 
 the nature of essential mistake cannot fail to be of such 
 effect, be it excusable or not, since the consent is lacking; 
 but the inexcusableness of the mistake gives the other 
 party the stronger right to claim damages. We have 
 said 1 that fraud and mistake differ only in the source 
 from which they arise and the fundamental basis of both 
 of them is the false belief. To have fraud, we need 
 the false belief brought about in the mind of one by the 
 deceit or trickery of the other, and in civil law we need 
 nothing more. It is based on the intention and possi- 
 bility of harm, because fraud produces the same conse- 
 quences as mistake, with which it is confusable. 
 
 370. Extent of Duress. In regard to duress one 
 should consider the inexactness of Schliemann's doctrine, 
 which starts with the conception that duress is not 
 really a voluntary act but forces a declaration which 
 does not agree with the internal will. In Schliemann's 
 mind, there is no consent in this case, and the contract 
 is void. Now this doctrine would be applicable to 
 the two cases of "vis absoluta," in which one becomes 
 the mechanical instrument in the hands of him who 
 uses duress, and of the "vis compulsiva," which can mo- 
 mentarily take away knowledge and freedom. In such 
 cases there is an external similarity to will, but will and 
 
 1 Cf. 362 ante.
 
 MUST BE POSSIBLE 581 
 
 consent are in fact lacking. If the fear is not such as to over- 
 shadow the mind and to destroy absolutely the normal 
 will, consent cannot be said to be lacking, and yet the 
 contract can be avoided because freedom is hindered in 
 its exercise by injustice, from which no right can arise. 
 In such a case the principle of the failure of consent is 
 not applicable, but that of the unjust limitation of an- 
 other's freedom. 
 
 371. Contract Must be Possible. The possibility of 
 carrying out the agreement is of three kinds, physical, 
 moral, and legal, as we have said before. 1 As the first 
 kind of possibility we must remember the old saying, 
 "Ad impossibilia nemo tenetur." Law connotes the idea 
 of well-being and consequently we must remember the 
 dictum of the jurisconsult : "Generaliter novimus turpes 
 stipulationes nullius esse momenti." So in the early 
 Roman law books, we read on the subject of conditions 
 not allowed in a will, "Quae facta laedunt pietatem 
 existimationem, verecundiam nostram, et contra bonas 
 mores sunt, nee facere nos posse credendum est." What- 
 ever contract has for its object an immoral action or a 
 transgression of a duty is void, because if ethics do not 
 include all of law, they contain a great part of it. The 
 legal possibility of carrying out the agreement presup- 
 poses an alienable right and a person who can dispose of 
 it. Essential personal rights cannot be alienated or 
 transferred because they are the person himself, one and 
 incommunicable, property in the true sense of the 
 word. We can add, says Rosmini, that in order to trans- 
 mit a right, we must be able to loose the chains by which 
 it is bound to us, but a person can never break the bonds 
 of his own personal rights because he cannot will self- 
 destruction or annulment. The same can be said of the 
 complex exercise of the personal powers or the perpetual 
 
 C/. 350 ante.
 
 582 CONTRACT AND ITS FORMS 
 
 exercise of one of them, because their loss would always 
 mean the end of personality. Only the resultants of 
 the personal powers and but temporarily are cap- 
 able of transmission. On the same principle we see that 
 one cannot promise another's right, although he consent 
 to it, to obtain some advantage for the promisor. A 
 failure of performance gives rise to indemnity, that is 
 always due, notwithstanding the refusal of the third 
 party, if the promise has been made absolutely. 
 
 372. Consideration. Consideration ("causa") is an 
 essential requisite to the validity of a contract and of 
 obligations in general because of the relation of cause 
 and effect. There is no juristic bond or constraint upon 
 him who is held to his promise to give or to do with- 
 out a reason, which is always the immediate deter- 
 minating cause, and as such cannot remain without 
 the law, although it need not be expressed in the 
 contract. In law, the consideration is the relation 
 between promises. In a bilateral contract, the considera- 
 tion is one promise regarded in its relation to the other. 
 In contracts of beneficence, the consideration for one con- 
 tractor lies in the beneficence itself, and for the other, in 
 the act. It is said and with truth that the consid- 
 eration differs from the object in this; that in the con- 
 sideration the promise is regarded relatively, and in the 
 object it is regarded absolutely. The consideration 
 must be bones fidei, because legal relations cannot 
 be based on falsity or immorality. This requisite 
 serves to show whether or not there is trickery. It can- 
 not, as Rosmini says, be held as an obstacle to the trad- 
 ing of honest men, because they work with honest motives 
 and have no repugnance to show their motives. The law 
 should not hesitate between the two evils of not pun- 
 ishing trickery and deceit or of wounding the suscepti- 
 bility of some honest people in peculiar positions; so
 
 INTERPRETATION 583 
 
 much better is it for the latter to suffer the inconvenience. 
 But the minor ill can .be avoided, as, in fact, it is avoided, 
 when the law follows the maxim that the consideration is 
 presumed and therefore there is no need to show it. In 
 fact, in those countries in which there is such a requisite 
 as in France and Italy, there is no talk of reform on this 
 point, and there seems to be no necessity to follow the 
 example of the Austrian legislation in the contrary rule. 
 373. Rules of Interpretation of Contracts. In pur- 
 suing the subject of contracts in general a step further, 
 we must say a word about the rules of interpreta- 
 tion and their fundamental divisions. The object of 
 the rules of interpretation of contracts is to get at the 
 understanding of the intention of the parties. Now the 
 first rule (like the others) is based on the knowledge of 
 the Roman jurisconsults, the logicians and geometricians 
 of law: "In conventionibus contrahentium voluntatem, 
 potiusquam verba spectari placuit." If the intention of 
 the contractors is not clear, the meaning of the words 
 may be gathered from the context. When the mean- 
 ing is obscure even then, a court must interpret 
 them. "Incivile est nisi tota lege perspecta, una 
 aliqua eius particula proposita, judicare vel respon- 
 dere." If the meaning cannot be determined by the 
 court, the object of the contractors must be considered ; 
 "Iniquium est perimi pacto id de quo cogitatum non 
 docetur." If the object is obscure, then this rule may 
 explain the contract: "Semper in stipulationibus et in 
 veteris contractibus id sequimur quod actum est, erit 
 consequens ut id sequamur, quod in regione in qua 
 actum est frequentitur. Quid ergo si neque regionis mos 
 apparent quia varius fuit? Ad id quod minimum est, 
 redigenda summa est." Ptolemy adds (and there is no 
 doubt that he is correct) a further rule: If in the indi- 
 cated ways the clear intent of the contract cannot be
 
 584 CONTRACT AND ITS FORMS 
 
 found, one should give the words the sense in which 
 they have some reasonable effect: "Quoties in stipula- 
 tionibus ambigua oratio est, commodissimum est, in 
 accipi quo res, qua de agitur, in tuto sit." 
 
 374. Division of Contracts. A philosophical division 
 of contracts was first made by Kant, who has been 
 followed by many writers, among whom the most 
 distinguished are Hegel and Ahrens. It is founded 
 on the substance of the contracts themselves and 
 develops with a "principium divisionis," which is not 
 foreign and arbitrary, as those generally followed by leg- 
 islators. Every contract, according to Kant, has for its 
 object either a unilateral (gratuitous contract) or a bilat- 
 eral advantage (the contract with consideration), or is 
 a guaranty. The gratuitous contracts include deposits, 
 pledges, bailments, loans for use 1 , and gifts. The con- 
 tract with consideration includes exchanges and leases. 
 Exchange in its most general sense is divided into ex- 
 change, properly so called, sales, and loans for use; leases 
 include contracts of hiring, mandates, 1 which implies the 
 substitution of one place or name for another. If it 
 merely means the substitution of place and not of 
 name, it has the commercial notion which results in a 
 contract with consideration. The contract of guaranty 
 has three forms, pledge, "fideicommissus," and thegiving 
 of security. This classification of Kant, although it has 
 a speculative value, is useless because it does not contain 
 such important contracts, as, for example, that of part- 
 nership; it is also erroneous in that part in which it con- 
 fuses a lease. 
 
 375. Trendelenburg's Division of Contracts. Less 
 incomplete but equally dialectic in substance is the 
 division of Trendelenburg, which does not consider 
 the contracts of guaranty as a third kind, but ac- 
 
 'C/. 365 ante.
 
 TRENDELENBURG'S DIVISION 585 
 
 cording to their nature adds them to gratuitous con- 
 tracts and those with consideration. According to 
 their form contracts are (this philosopher teaches) 
 verbal, written, and implied. The simplest form is where 
 the agreement is expressed with words which become 
 precise and solemn formulas or symbols. A written 
 contract can acquire great force through judicial classi- 
 fication. In implied contracts, the agreement is shown 
 by acts and deeds. The tacit contract presumes always 
 a manifestation, no matter how slight the agreement 
 by words or acts, and appertains, therefore, to one or 
 the other of the above categories. As to content, 
 Trendelenburg goes on, contracts have for their object 
 an increase of force or the removal of an uncertainty of 
 rights. The former are generally either a gift, exchange, 
 or partnership, and form a continuous and progressive 
 series, raising the relations from a unilateral to a 
 bilateral, and then to a communion of things through a 
 complicated business arrangement for common gain. It 
 is clear that promise and counter promise are of a lower 
 order than an agreement to carry on a business in 
 common. Contracts of gift are unilateral and benef- 
 icent because there is an obligation upon only one 
 of the parties. They regard either the donation of a 
 property, utility, or right, constituting "donatio," prop- 
 erly so called, or the gift of the use of something (a 
 bailment), or the gift of gratuitous services (a deposit 
 or mandate). Contracts of exchange are bilateral and 
 not gratuitous because there are mutual obligations on 
 both parties. The principal kind of contracts of 
 exchange can be called exchange proper, the gift of mer- 
 chandise for merchandise, buying and selling, or the ex- 
 change of merchandise for money, the exchange of things 
 or of work (the use of properties or of forces as well 
 corporeal as spiritual because both are representative of
 
 586 CONTRACT AND ITS FORMS 
 
 value), and loans (the use of money exchanged for 
 money). Among the bilateral contracts we must place 
 insurance contracts because the parties impose upon 
 themselves reciprocal obligation under given conditions. 
 The partnership contract not limited to single acts and 
 counter acts is naturally more general, since it looks to a 
 common purpose to be obtained by many common acts. 
 These contracts differ among themselves, because the 
 obligation can either create an entity distinct from the 
 partners or not. A settlement ("transactio") defines un- 
 certain rights by reciprocal renouncements and con- 
 cessions between the parties, and shows a separation 
 and not a voluntary increase of strength, therefore it 
 interrupts the continuous and progressive series. 
 
 376. Trendelenburg s Division is Exhaustive. In 
 the above classification, the principal kinds of contracts 
 are considered, though it is true that emphyteusis and 
 leases find no place there, but it cannot be denied that 
 these two are bilateral contracts and are easily reducible 
 to the conception of exchange or of trading in its 
 widest sense. Emphyteusis is the lease of a farm "in 
 perpetuum," or for a term under an obligation for an 
 annual payment in money or in kind. The leases and 
 loans are the exchange of real estate or the payment 
 of money (which the grantor cannot demand back) 
 for a rent or annual payment in kind or otherwise. 
 All the other bilateral contracts which look to an ex- 
 change (resolvable in the "do utdes," the "do ut facias," 
 the "facio ut des," or the "facio ut facias") can figure 
 in the classification of Trendelenburg. It is true that 
 Trendelenburg does not numerate contracts of guaranty, 
 but he speaks of pledge and bond. Such contracts can 
 be reducible to "fidei-commissum," pledge, and mort- 
 gage. The division of Trendelenburg is like that of Kant, 
 but has an inferior dialectic value. Trendelenburg him-
 
 TRENDELENBURG'S DIVISION 587 
 
 self confesses that in the principal series of contracts 
 making for an increase of strength, there is a progress 
 from the unilateral to the bilateral, and from the latter 
 to the common will of a partnership. The progressive 
 advance is stopped by the contract of settlement, which 
 represents a separation of forces. After further reflec- 
 tion, however, upon Trendelenburg's division, we must 
 see that the settlement separates in the sense that 
 it defines uncertain rights and, in proceeding to their 
 definition, results in an increased strength. Confused, un- 
 certain, and unlimited rights are apparent but inefficient; 
 true strength begins with limitations, distinctions, and 
 certainty. A settlement eliminates obstacles, avoids 
 losses, determines the rights or acquired powers of the 
 person, who feels more freedom and self-assurance and 
 finds satisfaction and pleasure in the contract. We 
 know that a feeling of pleasure is brought about by 
 an increase of power and that fatigue or pain is caused 
 by their deficiency. A settlement is a kind of bilateral 
 contract based on mutuality and exchange and as such 
 must be placed before that of the partnership and 
 after the unilateral contracts. The series of principal 
 contracts becomes thus continuous and progressive. 
 All the contracts, therefore, considered in respect to 
 their contents, look to an increase of force in due con- 
 formity to their origin. Besides, we must not forget that 
 they are bound with the impulse towards autarchy. 
 With this addendum the classification of Trendelenburg 
 seems full and philosophical.
 
 588 FREEDOM OF CONTRACT 
 
 CHAPTER XIV 
 
 FREEDOM OF CONTRACT AND THE 
 CONTRACT OF LABOR 
 
 FREEDOM OF CONTRACT, ITS LIMITS AND ITS GUARANTY. THE 
 SOCIAL MISSION OF PRIVATE LAW. THE EQUALITY OF THE 
 PARTIES IN THE CONTRACT OF LABOR. THE SYSTEMS THAT 
 REGULATE THE LIABILITY OF THE EMPLOYER FOR INDUSTRIAL 
 ACCIDENTS. 
 
 377. Freedom of Contract should Not be License. 
 Now let us pass to the examination of the nature of 
 some special contracts which have given rise in our time 
 to not a few difficult trials and discussions in the economic- 
 juristic sphere. A contract is the most definite expression 
 of the "j us voluntarium" and freedom of the individual. If 
 the individual is free and can dispose of the things which 
 belong to him in the ways that he finds most convenient, 
 it is a logical inference that he has free rein to place him- 
 self in relations with his fellows by the promise of objects 
 or useful services. Law should respect the freedom of 
 contract up to the point where it becomes license and 
 takes a position opposed to the principles of reason, mor- 
 ality, justice, and the true interests of society which is 
 composed of individuals. As we have seen, the conception 
 of freedom of contract (a consequence of property and of 
 the freedom of man) is limited by other conceptions of a 
 higher order found in the very human nature, which make 
 for the happiness and necessities of the great ethical 
 whole represented by social life. It is not only the right 
 of contract which is thus limited, but the rights of 
 property, family, and inheritance. Private law, in fact,
 
 PROTECTED BY LAW 589 
 
 must be subordinate. Hence it follows that private law 
 is in the last analysis the "jus voluntarium." It is clear, 
 however, that individual will is more dominant in private 
 than in public law, and that in private law it is more 
 dominant in property and in contract than in the family 
 relations. But no one has seriously contended that in 
 the sphere of contract, the limitations placed by the higher 
 order should not be observed. With the progress of time, 
 the freedom of individuals develops and grows larger, 
 taking possession of all the domain which belongs to it, 
 and substituting itself for illegitimate coercive control. 
 But at the same time there is born a larger comprehen- 
 sion and a more real and concrete meaning of duties 
 which demand conditions possible for their existence 
 and their work. 
 
 378. Freedom of Contract should be Protected by Law. 
 So the reasonable limits of freedom grow, while free- 
 dom itself increases and gains strength, ceasing to be a 
 name and becoming a reality. By this we do not mean 
 to say that nature changes. Heretofore, it has shown 
 itself in its true aspect when the statutes allowed it 
 suitable conditions and gave it real guaranties of devel- 
 opment. The new age reclaims not an abstract and nom- 
 inal freedom but a freedom that is concrete and real. The 
 statutes establishing conditions and guaranties are not 
 based on questions of organization, that is, on the attain- 
 ment of a general purpose through the whole, but pro- 
 vide within the marked boundaries of their jurisdictions 
 for the protection of existing freedom. The protection 
 should not be understood merely as the purpose or effect 
 of the agreement of two wills but should be considered 
 as a guaranty of the contractual freedom of one party 
 in respect to the freedom of the other. A reform of pos- 
 itive modern contractual law is only justifiable under 
 two heads; in the name of the increasing correlation of
 
 590 FREEDOM OF CONTRACT 
 
 conditions shown in the great increase of specialization 
 and individualization, and for the increase of the actual 
 conditions of freedom. The social mission of all private 
 law, of which Gierke writes, is not possible except in the 
 train of these two general conceptions, because private 
 law is formed on the principle of the freedom of individu- 
 als always limited and controlled by the higher order of 
 social liberty. If this principle fails, and if the collective 
 will as a "jus cogens" is put in its place, the series of rela- 
 tions by which the individuals hope to obtain particular 
 objects, by means which they themselves choose, will be 
 entirely destroyed. Socialism in private law is its de- 
 struction, because there is no private law where the indi- 
 vidual personally has not free play. Neither can there 
 be a private code of law made to help the poor classes 
 against the overweaning power of the middle class, as 
 appears to be the idea of Menger in Germany and of 
 Salvioli in Italy. This kind of law made into a code 
 would be essentially privileged class legislation. It 
 could have no place in a mind free from prejudices, and 
 would be injustice and not law. "Cuique suum" is the 
 slogan of justice, and therefore a civil code for the poor 
 classes cannot be allowed, especially when the equality 
 of all citizens is proclaimed in public law. It is not pre- 
 sumable that the poor, declared capable of participating 
 in public life, are at the same time inexperienced 
 men, innocent creatures who fall victims to the greed of 
 the rich in almost every relation of civil life. Such a code 
 tends to sacrifice freedom to material equality among 
 men. Now there is no need to confuse these two distinct 
 conceptions, of effective freedom and material equality. 
 The statutes should place the individual in a state where 
 he can really and usefully exercise his freedom without 
 giving him the property of others and the product of 
 their industry.
 
 ECONOMIC DURESS 591 
 
 379. Freedom of Contract is not Absolute. Con- 
 tractual freedom is never considered as an absolute 
 principle, but as limited by motives of morality, public 
 order, or social equity in codes which are truly indi- 
 vidualistic. There are many examples of equitable con- 
 trol : the action of rescission in cases of breach of contract ; 
 the avoidance of a contract of redemption after more 
 than five years from the sale ; of agreements for interest 
 in agency and antichresis ; certain prohibitions in contracts 
 relating to shipments of cattle, by which the common car- 
 rier obligates himself to bear more than a moiety of the 
 loss of beasts through chance and without his fault, or to 
 share to a greater extent in the loss than in the gain. The 
 legal prohibitions in all these cases tend to protect free- 
 dom itself against dangers which threaten it in certain 
 conditions of life. A clause in a lease, by which a farmer, 
 who waives his right to be relieved of rent because of acci- 
 dents foreseen and unforeseen, must pay the rent even if 
 he receives nothing from the property, and the renuncia- 
 tion of remuneration for improvements made by a lessee 
 in cases of failure where he has to return the property, 
 could be made void for the same reason. Gianturco, in his 
 book "L'Individualismo ed il Socialismo nel Diritto 
 Contra ttuale," shows that these two prohibitions would 
 have in reality the same object as those already recog- 
 nized, which we have mentioned above. 
 
 380. Economic Duress in the Contract of Labor. 
 Everyone recognizes the serious omissions of the law 
 on the subject of contracts for labor. This important 
 contract, the object of bitter criticism, is still governed 
 by a few rules derived in part from Roman law inappli- 
 cable to the new conditions of modern times. Certainly, 
 the contractors in a hiring contract or a contract for labor 
 are not in a state of equality, because on one side there 
 is the employer with plenty of capital who can decrease
 
 592 FREEDOM OF CONTRACT 
 
 or suspend work and, on the other, there is the operative 
 who, as vendor of labor, cannot rest from his trade, with- 
 draw his offer in crises, or wait, but who must work for 
 wages which will keep him alive but which need not permit 
 him any gain. The one is often stubborn in his pride; 
 the other struggles to avoid starvation. Even if the 
 wages are relatively high and he can enjoy a decent man- 
 ner of life, the employer is always the stronger. Hence 
 the necessity of equalizing as far as possible the condi- 
 tions of the parties to a contract for labor, not by attribut- 
 ing to the operative what is not his, not by reducing the 
 rights of capital and of him who unites and directs the 
 elements of production, not by the establishment of 
 reasonable wages through decrees of public authorities, 
 but by protecting the freedom of the operative and giv- 
 ing him opportunities of development. Among such 
 means, we can count, for example, the prohibition of wage 
 paying in kind or in a system of "truck" by which the 
 wage is decimated, and by the determination of reciprocal 
 rules and duties of employer and operative in case of an 
 omission from the contract. If a house or some real 
 estate is rented with an omission in the terms, the laws 
 provide and establish the length of the lease by a pre- 
 sumption; but if the labor of a thousand operatives is 
 contracted for without the aforesaid clause, the laws are 
 mute and the contract runs ad libitum. Another means 
 is the limitation of the penalties which theemployers can 
 impose. The laws about the employment of children and 
 women, Sunday rest, accidents, employees' insurance, 
 and industrial regulations have a distinct influence on 
 labor and represent a series of equitable limitations. 
 
 381. Employer's Liability must be Increased. The 
 principle of the employer's liability for negligence in 
 cases of industrial accidents which exists to-day accord- 
 ing to existing law, must be amplified. On the opera-
 
 BURDEN OF PROOF 593 
 
 tive, hurt in an accident, is laid the burden of proving 
 the negligence of the employer. The employer should 
 be obliged at least to a certain extent to indemnify 
 the operative for injuries which are really the trade risks, 
 received by chance. The employer is the head of the 
 industry, and as such takes all the profits and advantages, 
 while the workman labors in the interest of the master, 
 and receives a fixed wage. It is only just that the em- 
 ployer, because the gains are his, should bear the conse- 
 quences of injuries inseparable from the exercise of that 
 branch of production. No one should be enriched through 
 harm or injury to the others who work for him. We 
 should note the maxim: "Quihabet commoda ferre debet 
 onera." These accidental injuries differ from unavoidable 
 accidents, which are inherent in the business. Unavoid- 
 able accidents are foreign to the management of the busi- 
 ness and are beyond the provisions for the ordinary 
 course of events. We can easily see that in the cases 
 which are not connected with the management of the 
 business, there can be no liability on the part of employer, 
 whether you consider him as the author of the injury 
 or whether you consider him as the head of the business ; 
 neither can he be held responsible for the negligence of 
 the operative who, of his own freewill, has placed himself 
 in a position to receive the harm which affects other per- 
 sons and the capital as well as himself. There is no doubt 
 that such increase of liability should be regulated by law, 
 which could not be waived by agreement. Such a 
 system does not shift the burden of proof, because it is 
 right that the employer who alleges the contributory 
 negligence of the operative or the unavoidable accident 
 as a ground for escaping liability should be made to 
 prove it. 
 
 382. Shifting of Burden of Proof will not Answer 
 the Problem of Employer's Liability. There is a system
 
 594 FREEDOM OF CONTRACT 
 
 which hopes to realize the principles of equity by a 
 simple shifting of the burden of proof without disturb- 
 ing existing statutes, which hold the employer liable for 
 accidents only when his negligence has been shown. 
 By the shifting of the burden of proof, this negli- 
 gence is presumed, and the employer must show that 
 he is not in fault. But this is in derogation of com- 
 mon law, founded on the maxim that he who makes 
 an allegation must prove it, and that the author must 
 prove his act as the man bound by a covenant must 
 prove the exception which sets him free. And further, 
 this derogation is not just because the proof is not easy 
 for the employer, since the operative in the factory is in a 
 state of continuous activity. Fusinato, in his monograph 
 "Gl 'Infortuni del Lavoro," observed that this presump- 
 tion of negligence on the part of the employer does not 
 conform to reality, giving statistics to show that the ma- 
 jority of industrial accidents are caused by chance or 
 facts whose cause it is not possible to establish. The 
 state of the locality and materials is often so changed by 
 the accident as to become irrecognizable. The men who 
 could testify about the negligence are either dead or in 
 a condition in which they cannot testify, if they are not 
 parties to the action themselves. In these circumstances 
 the employer cannot get evidence. (Of course, it is true 
 under the existing rule that the workman, after the lapse 
 of months without means, and deserted by his fellow- 
 workmen through fear of a loss of employment, is in the 
 same predicament.) It is clear that no presumption 
 of negligence should be allowed against the employer 
 only because he is rich, and it is not just to presume 
 the master negligent since the operative was engaged 
 in the business and therefore was in no wise like a 
 passenger on a railroad. Fundamentally, the system 
 of shifting the burden of proof modifies the present
 
 LIABILITY NOT CONTRACTUAL 595 
 
 law by saddling the employer with the injuries not only 
 of his own negligence but with those of unknown cause. 
 
 383. Employer's Liability is not Contractual. Be- 
 sides the system of shifting the burden of proof, there 
 is one which bases the liability of the master in cases 
 of accident on the contract itself, by which he is 
 bound to provide all the necessary precaution to pro- 
 tect the operative. This contract creates relations of 
 dependence and subordination on the part of the opera- 
 tive to which the duty of guaranteeing protection on the 
 part of the master corresponds. It is not the negligence, 
 say the upholders of this system, that causes the liability, 
 but the agreement. The operative must only show the 
 contract in the case of an accident; the master must 
 prove that he was not in fault. Now we must show that, 
 admitting the fundamental idea of this system, the 
 master is bound by the contract to make all provisions 
 necessary for the protection of the life and health of his 
 operatives; but that is the extent of his duty. If such 
 provisions have been made and followed, but nevertheless 
 the accident happens, the master is not responsible and 
 is not bound to give indemnity for the accident of unknown 
 origin. From the contractual nature of the master's obli- 
 gation, there is brought about no shifting of the burden 
 of proof, because the contract is not for the rent of a man 
 but for his work, which cannot be considered as a machine 
 that, leased, must be returned after use as it was or with 
 compensation for wear and tear. There is neither obliga- 
 tion nor demand to restore the person of the operative, 
 but he wishes payment and looks to the contract as evi- 
 dence of his right. In lease, transportation, and bailment, 
 the real author of the contract demands the object and 
 he who is bound proves the event which frees him from 
 responsibility, but in contracts for work, in cases of acci- 
 dents, the person is not demanded back.
 
 596 FREEDOM OF CONTRACT 
 
 384. Employer's Liability Question can be Settled 
 by Obligatory Insurance. Accepting the principle on 
 which for equitable reasons the system of full liability 
 is based, there is no serious objection to not enforcing the 
 obligatory accident insurance of operatives by the em- 
 ployer, since he takes all the profit of the industry, and 
 therefore must bear the consequences of chance events 
 or trade risks. The law has the power to force those 
 engaged in a trade to insure the payment of an indem- 
 nity of a definite amount to the operative killed or 
 wounded as the result of an accident occurring 
 in the course of the work. If the accident happens 
 through the malice or negligence of the employer, 
 the operative is entitled not only to the indemnity 
 insurance, but to the necessary sum to compensate 
 for the damage, under the rule of common law. It is 
 clear that no indemnity is due the operative for his 
 malice or negligence, or for unavoidable accidents. 
 Through the insurance, the risks are divided among 
 a great number, and thus when the accident happens 
 the masters are not obliged to disburse large sums 
 and have lawsuits with their employees. The system 
 of liability creates a state of war between the em- 
 ployees and employers; insurance institutes a reign of 
 peace. Obligatory insurance implies a new element 
 in cost of production bringing about an increase in price 
 of the objects falling chiefly on the consumer and some- 
 what upon, the producers themselves. On this point, 
 we must have no illusions. And the law, in determining 
 the measure of damages to be paid by the employers for 
 insurance, should take accurate thought of the real 
 conditions of the production and the industries of the 
 country. It is necessary above all to see if the obliga- 
 tion can be placed at all and within what limits in a 
 particular situation. There is not much foundation for
 
 EMPLOYER'S LIABILITY 597 
 
 the fear that obligatory insurance will make the em- 
 ployers negligent in adopting provisions and precautions 
 for the employment of labor, because the insurance 
 companies are none too willing to pay indemnity and 
 make payment only when there can be no doubt that 
 there has been no contributory negligence of the master 
 contributing, as Ferraris has shown in his book on this 
 theme. 
 
 385. Laws of Employer's Liability should be Both 
 Preventive and Remedial. The laws should not be 
 limited to the reparation of damage but should also 
 take forethought to prevent it, establishing the general 
 rule on which special regulation could be based, imposing 
 necessary precautions in regard to the health and life of 
 operatives and to prevent accidents. Twofold, there- 
 fore, is the duty of the laws: to foresee and prevent 
 the accident, and to insure reparation and help when the 
 injury has happened.
 
 598 USURY 
 
 CHAPTER XV 
 USURY 
 
 INTEREST AND ITS LIMITATIONS. FREEDOM OF INTEREST. 
 USURY AND ITS METHODS. USURY AS A FORM OF CIVIL WRONG 
 AND THE METHODS OF FIGHTING IT. USURY AS A CRIME. 
 CRITICISM OF THE THEORY OF STEIN. THE SPECIAL FEATURES 
 OF THE CRIME OF USURY. LAW AND LIFE. 
 
 386. Interest is Legitimate. Interest is profit gained 
 by lending others capital; it has been regarded from 
 a biased point of view and has been held in ill-repute 
 for historical causes and through moral, philosophical, 
 and religious prejudices. The severity of the Twelve 
 Tables, which has been depicted in "The Merchant 
 of Venice," has not been the ultimate reason for the 
 abhorrent discredit with which it has been regarded. 
 Loans to the rich for objects of luxury and dissipation, 
 and those to the poor to obtain money, especially in 
 the time of barbarian devastations, and the precepts of 
 charity in the Old and New Testaments which pre- 
 scribed succor for the poor and forbade interest, have 
 had much influence on the minds of the people and the 
 legislature. To the impulses of sentiment, to the voice of 
 fraternal love is added scientific authority represented 
 by the celebrated reasoning of Aristotle on the natural 
 unproductiveness of money, which was accepted by the 
 jurisconsults who first taught "usurae vicem fructum 
 pertinent," but ended by affirming that "usura fructu 
 non est," since it was not derived "ex ipso corpore," 
 but from the money itself.
 
 INTEREST 599 
 
 387. Recognition of the Legitimacy of Interest. The 
 more complex needs of life, the growth of trade, the 
 increase of commerce, and the gradual development 
 from an economy of nature to economy of finance 
 brought about the legal recognition of pawn-shops, 
 state offices, as well as that growing out of the loans of 
 traders in business There was introduced a kind of 
 justification of interest, not of its own virtue, but as a 
 compensation for the non-user of capital through the 
 conception of "damnum emergens" and "lucrum ces- 
 sans." Legal interest on a judgment was not looked 
 upon with the same dread. Kings sold to the Hebrews 
 and Lombards the monopoly in the State of lending 
 money at high interest, but were always ready to con- 
 fiscate their goods at every popular demonstration 
 against usurers, thus making a double profit. 
 
 388. Interest fully Recognized at Law. Finally the 
 exception became the rule and interest was allowed 
 in an age in which the object of lending was not to 
 preserve or consume money, but to invest it as capital ; 
 thus the seed is distinguished from the fruit. The 
 seed value is the value which money has as merchan- 
 dise, that is, the expense of coinage; the second is 
 bound up with the use of money as capital. This dis- 
 tinction teaches that the justification of interest does 
 not lie only in the amount of capital. The discovery of a 
 mine, for example, can lessen the price of money, and 
 at the same time interest can increase through the insuffi- 
 ciency of capital. In our day, the conception of physi- 
 cal fecundity is distinct from that of economic pro- 
 ductivity, and therefore we can see that money, although 
 it is not fecund physically, is economically productive. 
 Interest (the civil fruit) is justified by the undeniable 
 principles of economico-juristic reason because it is the 
 compensation for the use of another's capital. It is also
 
 600 USURY 
 
 the price of risk. The return of the capital is a direct 
 consequence of the respect due to individual property. 
 About this there can be no doubt. 
 
 389. Usury can be Legally Forbidden. But if the 
 interest is allowed in such an age, one so nearly our 
 own, usury was forbidden. In other words, high 
 interest was not allowed. A limit was placed upon 
 the interest rate. Limiting laws, inspired by the spirit 
 of charity, are aimed against a high interest which 
 worries and harasses the largest and unhappiest class 
 of debtors and represents an age in which communi- 
 cation between men was difficult and when there were 
 great differences among the laws of different nations. 
 But when the interest rate is limited, capital, too, suffers 
 a limitation which should not be placed thereon. It is 
 deprived of its full scope and has not that self-govern- 
 ing characteristic of to-day when, by virtue of credit, 
 capital can almost be separated from its owner. With 
 the increase of communications and the decrease of 
 contrasts between the laws of nations, with the de- 
 velopment of trade and the increase in quantity and 
 mobility of capital, it is no longer possible to enforce 
 laws of limitations (now abandoned by the greater 
 number of progressive governments). A new principle 
 seems to be making its appearance generally. And 
 though hardly clear as yet, it is on the way to relegate 
 to the limbo of the other sophistries the conception of 
 the limitation of the interest. True and complete free- 
 dom becomes a fact with the freedom of exchange and 
 commerce. Money is merchandise as much as any 
 chattel and should not be subjected to a law of maxi- 
 mum. The jurists of the old school defended the alleged 
 right of limitation by the State by holding that the 
 chattel in coins was a special property since money was 
 the means of exchange. If the State, they said, estab-
 
 INTEREST LAWS 601 
 
 lishes the denominations in value and gives the legal 
 quality of a means of exchange to money, it can restrict 
 its use without thereby hindering the chattel of which 
 the coin is made, being the subject of barter and sale. 
 They did not understand the nature of money and the 
 State's duty of coinage, and they made no distinction 
 between creation and certification. Though the State 
 coins, it does not create the value of money which is 
 intrinsic and preexistent. It merely certifies the quality 
 and weight in order to give it recognition as a uni- 
 versal means of exchange. It could not abandon coinage 
 to private competition because the law of Gresham would 
 be immediately manifest, that is, that bad money is 
 more apt to circulate than good, and drives the good 
 from circulation. These are the only reasons for statu- 
 tory enactments in this regard. There is no creative 
 virtue in the State, and therefore the reasoning of these 
 jurists does not apply. Neither can we say that it 
 is possible to fix a priori the maximum of interest 
 because the fruits of money are essentially most change- 
 able, being ruled in every case by the correlation of many 
 facts, among which we must notice the length of the 
 loan, the security, and the quality and quantity of the 
 risk. 
 
 390. Abrogation of Legal Interest Laws. With the 
 abrogation of the limiting laws in many modern coun- 
 tries, usury has remained free and unpunished by their 
 codes. It has become more extensive and immoral, 
 until it is the terrible plague of all times and places. 
 Its extension and deep corruption are explained by 
 the developments to which economic life is subject. 
 Evolution means a growing quantity of exchangeable 
 goods, a progressive development of credit, an enormous 
 development of needs, and great progress in intelligence. 
 Evolution is confused with modern civilization, which,
 
 602 USURY 
 
 though it is seen under the economic aspects just men- 
 tioned, does not in general make for great progress and 
 morality. It is a fact that the mentality goes rapidly 
 forward while morality remains the same or varies very 
 little. Briefly; the more new forms that economic life 
 includes, the more complicated it becomes, the greater 
 needs and desires it causes, and the more intimate rela- 
 tions it gives rise to; just so much more will usury be- 
 come rampant, acquiring new attractions, new material 
 and a greater sphere, and at the same time will become 
 more cautious and deceptive. Now public opinion , which 
 has in every age and every country demanded a defense 
 against usury, is in a terrible dilemma due to the contra- 
 diction between the impunity of usury and the great 
 progress of this frightful plague. 
 
 391. Interest is Economic. Is the contradiction 
 so generally deplored real? Does usury besides being 
 immoral offend the law? At this point it is necessary 
 to remember that the substance of law is eudemono- 
 logical and in a great part economic. Now economics 
 teach that a loan should entail a profit. If the debtor 
 does not invest the capital lent and cannot receive 
 interest and principal from the investment, he loses by 
 his loan. Willing or unwilling, a debt always entails a 
 dependence of the debtor on the creditor, but he can 
 easily acquire the means of liberation and change his 
 position, if he is intelligent enough to profit by the 
 use of the loan. It is clear that a loan is capable of 
 such beneficial results only when it is real, and not 
 fictitious. Rational law holds there can be no debt 
 without a corresponding value given (unless we want 
 to call some obligations of indemnity, decreed by 
 law, by such a name). From this principle comes the 
 origin of some "actiones" or "condictiones," as the "con- 
 dictio sine causa," "causa data," "causa non secuta,"
 
 METHODS 603 
 
 "actio de in rem verso," "exceptio non numeratae 
 pecuniae," and the "laesio enormis." All these actions 
 presuppose the failure or inadequacy of the value 
 received. Law must always be based on the nature of 
 things and on the reality of economic relations. If it 
 is not so based it is no longer law, but rather the direct 
 opposite of law, wrong; neither can it be said that this 
 conception of law is foreign to reason, which should be 
 its essence, because the nature of things and the reality 
 of relationship are connoted by "recta ratio." 
 
 392. Methods of Usury. Usury may be an iso- 
 lated act or it may be a habit of profiting from the 
 folly, inexperience, necessity, or enthusiasm of the 
 debtor, raising a small and reasonable obligation to a 
 large loan, by making new agreements more stringent 
 and for a shorter term according to his financial con- 
 dition. The usurious creditor grows rich on the large rate 
 of interest, and upon the repayment of the loan, without 
 investing an equal sum, he increases his capital. He gains 
 a wage through the work of the debtor who can never 
 free himself from this slavery created in the name of 
 liberty, as Stein has said. The creditor, by high interest, 
 receives more than the capital lent, while he forced the 
 debtor to continue to borrow from him in order to pay 
 the interest ; from one hundred dollars given on interest 
 at a given time he receives twenty dollars as annual 
 interest and perhaps a thousand dollars' capital after 
 three or four years. This is usury of interest alone and 
 nothing else, but there is also a usury of capital because 
 a money-lender realizes on the debtor's personal prop- 
 erty, capital, friendship, and affections, which in moments 
 of coercion can have a monetary value. A money- 
 lender, after receiving a high and scandalous interest 
 two or three times the capital lent, makes a further 
 gain at the expense of honest creditors because he
 
 604 USURY 
 
 alone is in a position to know and choose the day best 
 for a bailment or levy, obtaining thus an advantage by 
 his bad faith. 
 
 393. Two Kinds of Usury, Simple and Seductive. 
 Usury can be simple or it can be underhand and 
 seductive. Even when usury is simple and the debt 
 is not provoked by a thousand different schemes, it is 
 always a debt without a corresponding loan, or a debt 
 enormously disproportionate to the loan, prohibiting 
 the accumulation of the capital, absorbing income and 
 possessions, destroying liberty and financial independence, 
 and affecting the honor of the men in its toils. For 
 even simple usury begins with a malevolent study of 
 the powers, character, and situation of the debtor and 
 involves the slow destruction of his wealth. With the 
 aid of a high interest rate, with the constant increase 
 of capital, with the advantage of bad faith, it re- 
 ceives three or four times the value of the loan, as 
 does the deceptive usury. It uses the same means of 
 pressure and threats as the latter. At first, it affects 
 a tenderness for the poor debtor, until it has him 
 well within its grasp, then it shows him a hardened 
 visage and finally adopts its true colors. Usury ex- 
 cludes kindness as kindness excludes usury; without 
 a certain brutality, without a certain animal ferocity, 
 one cannot become a usurer. Any kind of usury 
 is a close and ferocious calculation. The marks of 
 usury are generally the same in the case of simple or 
 hidden usury; in both, a loan is made presumably out 
 of kindness by third parties who are in secret accord 
 with the usurer for a short term upon an assignment 
 of wages, a pledge, a sale of chattels or crops in the 
 ground, or of products before harvest. Stein points 
 out that usury to-day always seems to tend towards 
 hidden usury and to adopt all the forms and activities
 
 CAN BE STOPPED 605 
 
 of its true nature. It extends from the cities to the vil- 
 lages and the countryside; the reason of this phe- 
 nomenon must be found in that evolution of modern 
 economic lie that we have spoken of above. 1 
 
 394. Usury not to be Confused with High Interest. 
 If usury consists in a debt without a corresponding 
 loan, it is clear that it has no relation to the interest 
 rate which is the effect merely of risk and scarcity of 
 capital. A loan where the risk is great is not usury, 
 though usury is always a loan without security. In 
 the first, there is a real loan and a commercial activ- 
 ity and calculation of interest in the enterprise. In the 
 second, there is a debt without a loan and no activity 
 on the part of the creditor but a keen awaiting for the 
 ruin of the debtor. High interest has been correctly 
 likened by Stein to a doctor who makes high charges, 
 and usury is like a wild beast on the field of financial 
 activity. From this it follows that the legislator 
 who wants to destroy usury should not take up the' old 
 method of limiting the interest rate, because freedom 
 of interest is the consequence of true economic and legal 
 principles. A great part of the criticism of the usury 
 laws, that we hear to-day, is aimed more at these laws of 
 limitation than at any particular civil or penal law 
 against usury itself. 
 
 395. Usury can be Stopped: It is a Question of Price. 
 From what has already been said we can readily infer 
 that both simple and seductive usury are illegal, for the 
 law should be founded on the reality of economic rela- 
 tions. There seems no doubt that such an offense is a 
 civil injury against which principal means of defense in 
 jure is the "condictio indebiti" or the "exceptio non 
 numerates pecuniae." The special action and defense, 
 especially at the time of the payment, strike usury 
 
 1 Cf. $ 386 ante.
 
 606 USURY 
 
 at a vital point. We can easily see that the law 
 must allow presumptions, and parol, and circumstantial 
 evidence, if it wishes to make good these means of 
 defense. And in this case, harmful results too may 
 be brought upon the bona fide creditor. The change 
 in the system of evidence would be great; we must 
 frankly confess it. The practical question always re- 
 mains, which can receive different answers according 
 to the different moral conditions of nations: Is it wise 
 to change such a system with the possible harm to 
 credit in order to punish usury in particular cases, or is it 
 better to let usury alone in order not to alter the rules 
 of evidence or disturb the public confidence? We may 
 as well admit that no system in this world can be 
 perfect and free from abuse. At one moment trickery 
 enjoys the protection given to honesty, and escapes 
 under the protection of the law, and now honesty is 
 wounded by the provisions adopted against dishonesty. 
 Here, as in other branches of the social and juristic 
 sciences, it is well to see on which side the scale 
 inclines, in other words, what proportion the advan- 
 tages bear towards the evils, and be governed there- 
 by. When statutes allow such means of defense for 
 the debtor, they cannot deny them to honest creditors, 
 otherwise the usurers would make their money answer 
 for the usurious loan. The final immoral and unjust 
 privilege of the usurer, that is, the preference grow- 
 ing out of a bailment would fail, were usury proved. 
 There is no use in introducing bankruptcy again 
 (proposed by Stein, with the intention of depriving 
 the usurer of a method of grave extortion) in which 
 all the creditors join and the debtor is deprived of his 
 goods which are given to a trustee, because bankruptcy 
 which deprives the miserable debtor in good faith through 
 the hardness of personal coercion has no excuse for exist-
 
 A CRIME 607 
 
 ence to-day, when imprisonment for debt is abolished. 
 The exemption of salaries and pensions is another civil 
 remedy against usury. Let us disregard the other 
 remedies of Stein, which include the invalidity of a 
 sale of crops before harvest and the prohibition of 
 recognition of a second board or lodging bill when the 
 first is not satisfied. The invalidity of the sale of prod- 
 ucts before harvest can well be included among the 
 means of nullifying usurious contracts and is logical, 
 but it is harmful to the freedom of the trade. And 
 harmful, too, to freedom of credit is the prohibition 
 against the validity of a second lodging bill when the 
 first is not satisfied, though this is frequently the first 
 step in usury in some countries. 
 
 396. Is Usury a Crime ? Now we come to the 
 question: Is usury only a form of civil injury or can 
 it be considered as a crime? The modern school of 
 penal law, writes Carrara, which has placed at the base 
 of coercive legislation the solemn principle that no human 
 act can be punished if not immoral or destructive of 
 rights, is not aggressive in protecting society. Usury 
 measured by this criterion should not be made a crime, 
 because the payment of exorbitant interest is freely 
 consented to, and there is no right to overthrow or pun- 
 ish what everyone is free to do or not. Without wish- 
 ing to go into the fundamentals of punishment it appears 
 to us that the doctrine of social security considered 
 by itself is not opposed to the criminality of usury, 
 because the harm which usury does to society in hinder- 
 ing the collection and development of capital is great, 
 and renders more artificial and more cruelly dishonest 
 the attempts of bad faith and destroys the economic 
 freedom and independence of individuals, as we have 
 said before. 1 There is no freedom of consent when the 
 
 1 Cf. 389 ante.
 
 608 USURY 
 
 debtor through inexperience or necessity of life is forced 
 to accept an outrageous agreement. It seems that 
 it was true yesterday as it is to-day that the plague of 
 usury brings panic to the minds of the people, who de- 
 mand penalties against usury. All laborers and farmers, 
 the military and the clericals, landowners and nobles, 
 fear usury and with good reason. It is necessary to 
 recognize that the fear in all these classes is the effect 
 of daily sad experiences. Usury is not a negligible factor 
 in the increase of suicide, and usury inflicted upon the 
 proletarian fosters a savage hate of capital and becomes 
 a true social danger. 
 
 397. Stein's Distinction of the Two Kinds of Usury. 
 Stein had tried to prove that if a creditor of whom a 
 debtor borrows of his own free will takes a dispropor- 
 tionate gain from the disorder of the latter's finances, 
 poverty, prodigality, or lack of foresight, he is guilty 
 of an act of simple usury which falls under the jurisdic- 
 tion of civil law. If, however, a creditor in any way pro- 
 motes a debt maliciously to his own advantage and the 
 disorder in the finances of the debtor, he is guilty of the 
 crime of usury which is a kind of extortion. Usury 
 threatens and forces the victim into a state of financial 
 ruin in order to obtain an unjust advantage. Usury 
 is extortion with the intent of getting an acknowledg- 
 ment of a debt owed without a corresponding loan, 
 by making short terms and threatening exposures in 
 case of failure of payment and taking advantage of 
 the social position of the debtor. To us it seems, as 
 it seemed to Andreani in "Delle Leggi Contro L'Usura," 
 that the distinction of Stein is without foundation, 
 because usury of any kind involves fraud and injury. 
 Even simple usury includes trickery, because it presup- 
 poses the desire of obtaining an illegal profit from the 
 exceptional position of a debtor who is forced to assume
 
 STEIN'S DISTINCTION 609 
 
 a debt without a corresponding loan, or one out of all 
 proportion to the loan, consenting through inexperience, 
 necessity, or enthusiasm, and subscribing an unfortun- 
 ate agreement to his own moral and financial perdi- 
 tion; it is a Satanic agreement of which either folly or 
 necessity is the occasion. The dishonesty of receiving 
 profit from a fictitious loan is an essential and criminal 
 element, and the ruin of the debtor is the conse- 
 quence. We can affirm that the characteristics of 
 extortion are not foreign to simple usury, if we follow 
 the penal definition of Stein. There is extortion when 
 threats of a future misfortune are made for gain, and 
 the victim is forced to give something at once, or when 
 he is threatened with an immediate misfortune to obtain 
 a promise. Extortion is aimed at, gaining an undue 
 profit through threats of great injury. In this sense 
 the usurer can be guilty of extortion whether the 
 debtor borrows of his own free will or whether the 
 usurer artfully provokes a debt and creates the causes 
 of his financial embarrassment. A creditor in simple 
 usury, to get money, threatens futile ills and forces the 
 debtor to give something in pawn or to offer it for sale, 
 or threatens actual evils, coercing him by threats, bank- 
 ruptcy, etc., to obtain new promises and new and more 
 exorbitant gains. Even if he does not urge a debtor to 
 contract the debt, he wishes to gain undue advantages 
 from debts without loans. He induces great and unjust 
 fears by reasonable but untrue statements. Simple 
 usury cannot be reduced to a simple tort, to legal fraud 
 as in the case of close bargains or the exaggeration of 
 the value of an object for sale, or even of a lie unaccom- 
 panied by trickery. There is always something more 
 than this, because in no case can there be any agree- 
 ment between good faith and the usurer. A tortfeasor 
 acts in good faith, but a usurer always acts, in bad faith.
 
 610 USURY 
 
 Often the creditor In simple usury, even when he has not 
 created the financial disorder of the debtor, has to no 
 small extent increased it, hastening the ruin which he 
 has foreseen from the moment when the debtor first came 
 to him. In usury, which instigates and seduces, the 
 premeditation of the debtor's ruin begins with the pick- 
 ing out of a victim who is at that time in no relation 
 to him and whom he proposes to entice by his perverted 
 art. 
 
 398. Usury Lies in the Debt without Considera- 
 tion; Fraud and Extortion are Accidental. There are 
 some who look upon usury as a crime only when it 
 is connected with fraud, which presupposes an act 
 intended to deceive and the attainment of illicit gains 
 injurious to another. According to them, those forms 
 of usury only are criminal in which the usurers adopt 
 artifices to protect themselves with the cloak of civil 
 law intended to prohibit illicit gains. This is the theory 
 of the Tuscan Penal Code which punishes cases of usury 
 clothed ormarked by fraud, for example, swindling, where 
 the debtor declares that he has received so much money, 
 while in fact he has only received a certain part of it, 
 the rest having been given in worthless securities, although 
 it was agreed that they should have a stated value. 
 Above we have proved that usury has always the ele- 
 ments of a crime, trickery, and injury. It is distinguished 
 from civil injury whether it be simple or instigating, and 
 seductive whether it is accompanied or unaccompanied 
 by artifices. Even when it does not deceive the debtor 
 and does not adopt a savage aspect in the saddest moments 
 of life, it is always a crime, because it is founded on the 
 desire to obtain illicit profit from the exceptional posi- 
 tion of the debtor, who consents through inexperience 
 or necessity to assume a debt without a loan and to sub- 
 scribe the act of his own ruin. In such a case, usury,
 
 A CRIME 611 
 
 which for various reasons is a special crime, is more 
 closely related to extortion, but the conception of neither 
 extortion nor fraud include all of the usurious attributes. 
 Usury, it may be said, always takes advantage of extor- 
 tion and not always of fraud and has its own peculiarities, 
 and is abhorrent in its financial and legal aspects. Such 
 a crime does not rationally demand the element of cus- 
 tom which the French law requires since we can find in 
 the case of a single usurious act the unjust profit of a 
 debt without a loan brought about by the inexperience 
 or stringent needs of the debtor. Its continuance is only 
 an aggravation. 
 
 399. Usury is a Crime against Private Property. 
 The special features of the crime of usury are gen- 
 erally connected with the crimes against economic life 
 and especially with those which refer to exchange and 
 credit, since usury involves debts without corresponding 
 loans, or debts enormously disproportionate to their loans, 
 and since credit includes property and usury is destruc- 
 tive of private wealth, so we can state that usury is 
 referable not mediately but immediately to crimes 
 against private property. The nature of usury is such 
 that it is always criminal, be it between traders or not. 
 From the ethico- juristic aspect, it is a matter of pure 
 indifference whether the act is commercial or not. Here 
 we must observe that if the penal laws did not apply to 
 commercial matters, usury would abandon its customary 
 civil forms and assume commercial attitudes. On this 
 account, the German law which applies to traders and to 
 commercial matters is preferable to the Austrian law 
 which does not regard traders. It is true that in business 
 it is very difficult to determine accurately the point where 
 legal profits end and illegal profits begin. But this dif- 
 ficulty is met as well in private life although to a less 
 degree. The net account is always a difficult thing to
 
 612 USURY 
 
 obtain in business and generally in all human affairs, 
 because they are complicated in their nature. If the 
 trader gains great development and freedom of proce- 
 dure, the criterion with which usury in trade should be 
 judged would be rougher than the criterion in private 
 life, but the definition which we have given of usury 
 would remain substantially the same. 
 
 400. Usury will Never be Eradicated by a Statute. 
 A law against usury which has so many diverse causes 
 will certainly never destroy that. Usury depends upon 
 the financial condition of society, especially upon the 
 scarcity of capital and deficient development of credit. 
 It depends upon custom in which bad faith takes no little 
 part, and on human nature itself, in which overreaching 
 and egoistical tendencies are not foreign, and which is 
 marked by folly, improvidence, and transient enthu- 
 siasm. Education and statutes can restrain, modify, and 
 correct these tendencies, which are now more and now 
 are less marked, but it will never succeed in uprooting 
 them. And this is true because usury goes on its pace 
 when it is forbidden and penalized, and when it is free. Is 
 it on that account necessary to make no effort? Should 
 the legislator wait with arms folded for the spontaneous 
 development of those social harmonies which we have 
 heard so much about? He will have to wait many and 
 many a year to see this plague diminished or on the way 
 to be cured, because capital is not yet sufficiently pro- 
 ductive and credit so far has not become so general and 
 well-organized as to foreshadow the approach of the time 
 when usury will have lost its strength. Punishments, 
 it is true, have appeared with economic and civil progress 
 and in a great number of cases have lessened and limited 
 usury. Fear has ordinarily in private relations been the 
 backbone of legislation, and the branch of the law which 
 prescribed penalties for usury was most important in the
 
 NEVER ERADICATED 613 
 
 years gone by. In our own time, civil law bears a larger 
 proportion in relation to the ancient penal law than before, 
 but the fear of conviction has by no means ceased to exer- 
 cise a salutary restraint upon the conduct of men. It is 
 true that usury threatened by the statutes will seek bet- 
 ter means of concealment and in many cases will probably 
 succeed in escaping prosecution. But the attack under the 
 civil and penal aspect must be equal to the force expended 
 in the breaking of the law, hence the system of civil law 
 remedies and of criminal penalties which we have men- 
 tioned in this chapter. This system should be developed 
 in a way which will not harm true credit and good faith, 
 getting its inspiration from the rules of a wise economic 
 legislative policy. In a word, penal laws against usury, 
 if they do not always and effectively punish the guilty 
 because of imperfections to which all penal laws are sub- 
 ject, produce two not unimportant advantages; on one 
 side, they keep some from the crime who are disposed to 
 commit it, and on the other, they preserve the high repu- 
 tation of the administration of justice, not forcing it to 
 protect contracts of a potently immoral character, and 
 which are contrary to universal opinion.
 
 614 PARTNERSHIP AND CONTRACTS 
 
 CHAPTER XVI 
 
 PARTNERSHIP, EXCHANGE, TRANSPORTA- 
 TION, AND SUNDRY WAGERING 
 CONTRACTS 
 
 THE CONTRACT OF PARTNERSHIP AND ITS FORMS. PART- 
 NERSHIP AND INCORPOREAL PERSONS. THE REGIME OF 
 AUTHORIZATION AND OF SUPERVISION. ANCIENT AND 
 MODERN EXCHANGE. THE NATURE OF THE CONTRACT OF 
 TRANSPORTATION. INSURANCE AND ITS NEW THEORIES. 
 GAMBLING CONTRACTS. 
 
 401. Three Kinds of Partnerships. A partnership 
 is generally defined as a contract under which two or 
 more persons control something in common in order 
 to get gain therefrom. Civil partnerships accomplish 
 their object in civil life; commercial partnerships 
 make speculations by the exercise of commercial acts. 
 These last are not full partnerships but particular, since 
 their objects are always clearly marked. These are 
 distinguished into three kinds according to the amount 
 of liability to third parties. The first is a general 
 partnership in which the partnership obligations are 
 guaranteed by the full and unlimited liability of every 
 partner. The second is the limited partnership in which 
 the partnership obligations are guaranteed by the full 
 and unlimited liability of the general partners and 
 by the sums deposited by the special partners. The 
 third is the special partnership or joint stock com- 
 pany; in it the partner is only liable to the amount 
 invested.
 
 NOT LEGAL ENTITIES 615 
 
 402. Subdivisions of Partnerships. A general part- 
 nership offers the greatest guaranty to third parties, 
 incites the great activity on the part of the partners, 
 and is useful in those industries which need the pres- 
 ence of directing partners in different places at the 
 same time. This form of partnership, requiring un- 
 limited confidence among the partners, does not include 
 many people. Large and hazardous undertakings can 
 only be accomplished through limited or special part- 
 nerships, which are better able to concentrate a large 
 capital, impossible where there is unlimited personal 
 liability. There are other kinds of partnerships, differ- 
 ing among themselves, which fall under the main 
 division into the three classes. The Italian Commercial 
 Code, for example, allows partnerships for mutual insur- 
 ance. It looks upon them as collective entities distinct 
 from the individuals who compose them, but enforces 
 the requirements of a special partnership as to the 
 responsibilities of the managers, the publication of 
 partnership acts, failure, change of charter, and accounts. 
 So, in the case of the cooperative partnerships, as to 
 publication of their partnership acts and the obligation 
 and liability of the directors, the code applies the same 
 rules as to special partnerships. The partnership of the 
 German Code corresponds to the Italian dormant 
 partnership and does not enter into the three cate- 
 gories. A partnership with a dormant partner is not 
 an entity separate from its members like the other 
 partnerships, but is a trade union of one or more persons 
 with a participation in the profits and losses in one or 
 more operations, or even in an entire business. 
 
 403. Partnerships are not Legal Entities, but are 
 More than the Sum of the Component Wills. Partner- 
 ships in general, derived from the interpenetration 
 of the wills in respect to an object and presuppos-
 
 616 PARTNERSHIP AND CONTRACTS 
 
 ing a common will, are ethical organisms in the broad 
 sense of the word. But this common will, although 
 easily distinguishable from the particular wills from 
 which it arises, is not such as to constitute the definite 
 and self-existing unity of a corporation, because its pur- 
 pose is not fixed and therefore is not independent of the 
 desires of the individuals. A partnership looks to the 
 immediate advantage of its members; the corporation 
 works for its own ends. A partnership is dissolved by 
 death or at the will of its members; a corporation in 
 these cases does not dissolve. Partners are owners and 
 upon the dissolution of the partnership they divide the 
 goods among them. Members of a corporation are not 
 owners of its property and do not divide it when the 
 corporation ceases to exist. A partnership, therefore, 
 in the true sense of the word, is not, like a corporation, 
 a juridical or incorporeal person. Nevertheless, there 
 is in a partnership something more than the collection 
 of its members or the sum of particular wills, because 
 it is founded on a common will. That kind of a will is a 
 natural element which is found in the maxim of the 
 oldest Italian jurisconsults. "Aliud est corpus unius so- 
 cietatis et aliud est quilibet ipsius societatis." The maxim 
 was well illustrated by examples of Roman law which 
 recognized in some forms of partnership an entity dis- 
 tinct from the members. The common will is the rational 
 principle of juristic individuality, which the law estab- 
 lishes as a means or vehicle for relations between strangers 
 and the partners, who are in fact the subjects of the 
 rights and obligations. A suit for partner's share in 
 fact is the suit for the quota of the partner in the 
 property of the society which is held in joint ownership. 
 If the theory of Ihering 1 did not recognize incorporeal 
 persons it could well be applied to partnership. We 
 
 l Cf. 214 ante.
 
 NOT LEGAL ENTITIES 617 
 
 must not forget that the conditions for an incorporeal 
 person understood in full and broad sense are two the 
 capacity to will, and the authorization of the State. 
 There is not complete personality without recognition, 
 as we have shown before. 1 Therefore, Puffendorf and 
 Troplong were wrong when they said that a partnership 
 of itself constituted a juridical or moral being without 
 need of authorization, which was demanded, they said, 
 only in the cases of public moral entities. Recognition 
 must necessarily be given by the State or not at all. 
 Positive law can admit the individuality of either civil 
 or trading partnerships, or those of trading alone, or 
 both of trading and civil, if the latter assume the form 
 of a trading society. It all depends upon the motives 
 and general utility which the legislature may determine 
 in different ways, but in the philosophy of law every 
 kind of partnership, whether civil or commercial, has the 
 virtue of bring raised to the state of juridical indi- 
 viduality. Positive law ordinarily does not consider 
 the civil partnerships as collective entities because they 
 are not founded necessarily, as trading partnerships 
 are, on relations with third parties, and because they 
 have not purposes as definite, certain, and manifest as 
 the latter. Civil partnership can develop in many ways, 
 unknown or insufficiently clear, to reach presumptive 
 recognition. On the contrary, the trading partnerships 
 do not meet these obstacles and are therefore regarded 
 by the laws as collective entities. The same laws allow 
 civil societies to assume trading forms without losing 
 their essential characteristics, since their nature does 
 not depend upon their form. In this case, they acquire 
 juridical individuality because they are founded upon 
 relations with third parties which must be governed by 
 the creation of a means or vehicle, as Iheringsays. 
 
 1 Cf. 220 ante.
 
 618 PARTNERSHIP AND CONTRACTS 
 
 404. Association is Old, but Associations are New. 
 Troplong writes that there is no need for new legisla- 
 tive rules on the subject of partnerships because asso- 
 ciation is a fact existing in all ages. And truly Roman 
 history shows us a type of partnership for the collecting 
 of taxes besides the celebrated example of a private 
 association; while the Middle Ages gives us that of the 
 great Florentine families, and the Lombards scattered 
 in all regions of the earth but always creditors of their 
 king. The history of the XVI Ith and XVIIIth centuries 
 is full of maritime companies for trade and colonization. 
 But although Troplong gives an exact description of the 
 spirit of association which is as old as history, he has not 
 understood the profound difference between the old 
 and the new trading societies. The first, which were 
 composed of a few members, were all founded on mo- 
 nopoly, which in its turn demanded slave labor, while 
 the second lived and developed power in the regimes 
 of freedom. Who is ignorant that the Roman eques- 
 trian order had the privilege of leasing out the taxes? 
 After the discovery of America, have not the distant 
 undertakings of particular companies been a kind of 
 governmental emanation? And was not the East India 
 Company given the tremendous privilege of exclusive 
 trade in its territory? The same society, it must not 
 be forgotten, was made owner of an immense expanse of 
 land. 
 
 405. Cooperative Societies. The French Revolution 
 in its love for freedom of labor looked askance at 
 every kind of association among operatives, fearing 
 that under the semblance of a recognized society a 
 revolutionistic order would arise. From this suspicion 
 came that isolation of the operative later so deeply 
 deplored and eliminated in part through the splendid 
 application of the great principle of mutual aid,
 
 COOPERATIVE SOCIETIES 619 
 
 the real base of cooperation, whose success demands 
 the presence of the highest gifts of intellectual and moral 
 human nature. Cooperation is principally concerned 
 with consumption, credit, and production. The coopera- 
 tive societies of consumption and credit, furnishing means 
 of accumulation and instruments of labor, are the best 
 adapted to realize production. It can be said, to adopt 
 a phrase of Vico, that cooperation in its application to 
 consumption and credit makes its own material. In 
 cooperation are interwoven ethics, economics, and 
 politics, because the individual in a system of reciprocal 
 aid ceases to be egoistic, makes larger profits, and 
 becomes a factor in society. In fact, in the cooperative 
 associations of consumption are united the sentiments of 
 mutuality and individual responsibility together with 
 the love of family. They obtain just prices, good 
 quality, and exact weight. The love of family always 
 develops and becomes stable through building societies. 
 When an operative obtains a modest home in which his 
 wife can be with the children, a large incentive to that 
 bad habit of tavern life is destroyed, the number of 
 crimes diminishes, and the beneficial sentiment of house- 
 holding appears, and the real base of the workmen's 
 credit is established. The people's cooperative banks 
 begin a state of personal and democratic credit, because 
 they do not require the deposit of capital and conciliate 
 the two diverse objects of mutualism and individual- 
 ism, which constitute a problem which has not, as yet, 
 been well considered. The cooperation of production 
 does not add fuel to the antagonism between capital 
 and labor, but presupposes a capitalistic laborer. 
 Neither does it owe its origin to a dependent right to 
 labor ; it asks nothing of the State. Such societies cannot 
 be considered as fantastic communities; they do not 
 absorb the individual, nor are they opposed to competi-
 
 620 PARTNERSHIP AND CONTRACTS 
 
 tion, because there are large and small industries which 
 have a great need of help in order to make both ends 
 meet through the exorbitant prevalence of the bigger 
 industries. 
 
 406. Need to Regulate Cooperative Societies. With 
 these statements as a premise, it becomes evident that 
 modern commercial legislation has (despite the con- 
 trary opinion of Troplong) to recognize and regulate 
 these new forms of association, which are the effect 
 of the natural development of freedom, which never 
 resuscitates old economic forms of civil society. It is, 
 however, necessary to notice that if the cooperative 
 societies from one point of view are commercial societies, 
 because they have speculation for an object and live by 
 trade, from another point of view they are something 
 greater, since they tend to harmonize the desires and per- 
 sonal interests with the principles of social stability and 
 fraternity through the development of the laboring 
 classes. In this sense such cooperative societies are 
 involved in social legislation. 
 
 407. Governmental Authorization of Partnerships. 
 The principle of economic freedom, which has generated 
 new forms of association, is destined to produce still 
 more general and notable changes in the relations between 
 such entities and the State. Even now the day of govern- 
 mental authorization nears its end in the codes of civil- 
 ized people. It is entirely contrary to contractual 
 freedom and cannot fail to seem strange that for 
 the completion of a private contract (which a partner- 
 ship is) there is need of governmental authorization, 
 while it is demanded in no other kind of contract. 
 It is an anomaly that the administrative power can 
 interfere in affairs of individual interests, protected 
 and limited by law. Now this interference is contrary 
 to principles of civil equality, and does not exist
 
 GOVERNMENTAL SUPERVISION 621 
 
 except when the law makes general rules and not 
 special rules for different cases. Law to-day should not 
 take care of him who ruins himself and loses his for- 
 tune, when he is in a position to understand what he 
 is doing and is effectively free, because the individual 
 cannot remain eternally a minor escaping thus from a 
 sense of responsibility upon which moral progress largely 
 depends. Law should not look upon the State as an 
 Argus or a Briareus, since the public power is not compe- 
 tent to judge correctly about the economic conditions 
 of an industrial project, jeopardizing, perhaps, the con- 
 fidence of the citizens in the State, because of frequent 
 cases of bankruptcy more or less shameful in opera- 
 tions which had received the governmental placet. 
 History shows that authorization has not efficiently 
 hindered the triumph of deceit, neither has it pre- 
 vented the bold effrontery of swindlers and adven- 
 turers to the harm of many who believed themselves 
 sufficiently protected by the prior governmental 
 examination of an undertaking conducted under the 
 form of a limited or special partnership. On the other 
 hand, it is possible that projects capable of great 
 utility might not meet the approval of the govern- 
 mental advisers ordinarily unversed in industrial mat- 
 ters, and therefore blinded by scruples and by their 
 education. In such a case the refusal of the authoriza- 
 tion is an incalculable loss to civil society. 
 
 408. Governmental Supervision of Partnerships. 
 The fate of the system of vigilance is one with that of 
 authorization because both are based on the forethought 
 of a paternal government. Governmental supervision 
 has disappeared in the progressive nations. The gen- 
 eral opinion on this subject is that the government 
 should abstain from all direct interference leaving to the 
 persons interested the care and responsibility of taking
 
 622 PARTNERSHIP AND CONTRACTS 
 
 account of the doings of a partnership of which they are 
 members or with which they are connected. It is clear 
 that they can always bring it before a competent court 
 for any violation of law. Governmental supervision 
 has the same vices as authorization; it is incompetent 
 to hinder the maladministration of the partnership. 
 Thus on one hand, it is pernicious to private interests, 
 because it creates a false belief that they are subject to 
 investigation, and on the other hand, it harms the good 
 name of the government to whose negligence are imputed 
 all the maladministrations. A watchfulness exercised 
 only over the important companies would result in an 
 illegal and odious inequality of treatment. 
 
 409. Publicity in Partnership Business and Per- 
 sonal Liability. We believe that the dangers resulting 
 upon partnerships in business can be avoided by follow- 
 ing the principle of freedom with its necessary and 
 practical consequences. From this it follows that the law 
 should, above all things else, establish the greatest pub- 
 licity in respect to the number and nature of the acts 
 and greater and more active efficacy in regard to the 
 method of carrying them out. It should provide, too, 
 for fuller and more rigorous liability for obligations 
 assumed on the part of the managers, promoters, officers, 
 and all those who are active in the partnership. The 
 law finally should render the watchfulness of those in- 
 terested easy without disturbing the organization of the 
 associations by foreign factors such as instruments of 
 government protection. The ideas enunciated here have 
 already begun to have their influence on modern law, 
 as can be seen from such laws as are in existence. 
 
 410. Freedom to Associate is Necessary. The con- 
 ception of freedom of business, gathered by us in an 
 inductive manner from economic history, positive law, 
 and all recent experience on the subject, becomes also de-
 
 BILLS OF EXCHANGE 623 
 
 ductive and necessary, connected as it is with the law of 
 the respect due to private property, and therefore to the 
 principle of individual personality. Because it follows 
 from the recognition that the individual personality is 
 the very freedom of individual man, and that property 
 is the investiture of the person and his free will applied 
 to objects, that the individual can dispose of his posses- 
 sions as he will and that he can render them subject to 
 infinite agreements as long as he does not offend against 
 custom, the social well-being, and public order. Such 
 limitation as we have seen he enacted in regard to forest 
 and mining property 1 can easily be understood when 
 we recollect that in the ethical organism so different 
 from the natural, the whole should respect the respon- 
 sibility of the parts as the parts should act in consider- 
 ation of the conscious and free life of the whole. 
 
 411. Bills of Exchange. Many writers, like some 
 legislators, among whom the French take an import- 
 ant place, consider a bill of exchange as a proof or 
 symbol of a contract for the transportation of money, by 
 which the contractor assumes the obligation of paying 
 a sum of money to another or upon his order at a certain 
 time or place for value given. There are three conditions 
 to a bill of exchange, understood in this manner: the 
 transportation from one place to another, a contract 
 between the drawer and drawee, and the indication of 
 value received. A bill of exchange differs from a promis- 
 sory note, because the latter is an act by which the 
 maker obligates himself to pay the creditor or his order 
 at a definite time, declaring that he has received value. 
 The former is always commercial, while the note is such 
 only if signed by a trader or issued in commerce, and 
 because it has a drawee and is drawn on a distant place. 
 In a note, he who pays is the maker, and he pays in the 
 
 l Cf. Chap. VII, Bk. II, ante.
 
 624 . PARTNERSHIP AND CONTRACTS 
 
 same place in which the note is made. Now this theory 
 is substantially modified by science and law; and the 
 radical modification is sanctioned by the philosophy 
 of law. A man can easily employ a bank and draw a 
 letter of exchange thereon to his own credit. In such 
 a case there is no transportation, but there is a simple 
 title of credit or an instrument of exchange given. 
 A true bill of exchange is an obligation surrounded by 
 rigorous formalities to distinguish it from other obliga- 
 tions and to render commerce more efficacious and cer- 
 tain. It must be a written obligation, by which one is 
 bound to pay a sum of money to whomsoever presents 
 the paper at maturity. This understood, it does not pre- 
 suppose transportation from one place to another, and 
 furthermore, the drawer can draw upon himself and pay 
 it without the intervention of a drawee. A bill of ex- 
 change does not really demand a contract between a 
 drawer and drawee, neither has it any need of con- 
 taining the statement of value received, because, as 
 Thol says, writing on this subject, the contract of a bill 
 of exchange arises when the bill is drawn. The indis- 
 pensable conditions are delivery and presentation. A 
 bill of exchange is the promise to pay a sum of money 
 to the payee ; it is performed by the drawee or indorser, 
 if he accepts. There is no counterpromise on the part 
 of him who takes the bill of exchange, because he, 
 having the title, has the rights and is not bound by any 
 duties. (It is true that he should present it to the drawee 
 for acceptance and that, in case he does not accept or 
 pay, he should have it protested, an act by which the 
 failure to accept or pay is stated, but these are the only 
 conditions for the exercise of the right of the holder and 
 they are not real obligations, as Marghieri has shown in 
 "La Cambiale.") From what has been said of the 
 nature of a bill of exchange it is clear that it is not a
 
 TRANSPORTATION 625 
 
 mixture of buying and selling or of bailment and loan 
 for use, as Trendelenburg thinks. 
 
 412. Transportation. Transportation has the great- 
 est possible importance because a large part of the 
 objects of wealth and value is brought into circula- 
 tion by its aid. We can state without fear of error 
 that almost all the commercial life of society centres 
 about this business which at the present day is largely 
 conducted through railroads. A railroad is the use of 
 the steam-engine for transportation. It demands large 
 capital and the formation of collective entities for its 
 construction and exercise. Upon it the transportation 
 of the greater part of the merchandise, the objects of ex- 
 change, depends, and it brings the other means of trans- 
 portation into coordination and harmony with it. Thus 
 it is the principal factor of travel. The State has been 
 obliged to fix the general plan of railroad construction 
 by statute and to regulate its functions, because this 
 means of transportation, like the others that are con- 
 nected with it and depend on it, is an object of public 
 service. It is here a question both of the circulation of 
 wealth and the granting of a monopoly, since the laws of 
 competition cannot take part. For experience shows 
 that where there is one railroad, another will not be 
 built alongside, because the cost as well as the govern- 
 mental grant forbids such a struggle for trade. One is 
 usually sufficient to unite the whole countryside. The 
 determination of the railroad plan and the relation 
 between the State and the company is a matter of 
 administrative law. The regulation of the relative 
 duties of shipper, carrier, and consignee is a question 
 of commercial law, which is not, however, a conventional 
 and voluntary law on this subject, preserving as it does 
 in the typical means of transportation the character of 
 public service. A contract of transportation does not
 
 626 PARTNERSHIP AND CONTRACTS 
 
 regard an isolated act, however complicated, but the 
 whole business. The isolated act is simply an act of 
 civil life and not commercial. Transportation implies 
 a legal relation between him who sends the goods and 
 him to whom they should be brought, and the third who 
 should take them from the first and second. A contract 
 of transportation, says De Tullio in a book of that name, 
 is complex, presupposing rights and duties between the 
 shipper, consignee, and common carrier from the moment 
 of its formation. The identity of the consignee is of 
 little importance, but at the moment of the formation 
 of the contract there must be some consignee, although 
 he need not be certain. In such cases the consignment 
 is made to the bearer in the bill of lading, because the 
 shipper must say that he has contracted an obligation 
 with somebody, though he is ignorant what individual 
 it is. The initial carrier in regard to the shipper acts as 
 agent of the other common carriers and in regard to the 
 other common carriers he acts as agent of the shipper. 
 The contract is a unit despite the number of intermediate 
 carriers; the bond which holds the shipper, consignee, 
 and common carrier is one. The carrier accepts the 
 obligation of providing the transportation, and he is 
 responsible for its execution as if it were his own act, 
 even if he must employ other carriers. 
 
 413. Insurance and Socialism. Insurance is a wager- 
 ing contract by which the insurer obligates himself to 
 guarantee the insured from a certain risk for a stipu- 
 lated sum, called a premium, which is determined by 
 the nature of the risk. Insurance eliminates misfor- 
 tunes by the division of the risk and can be con- 
 sidered, as Hermann considered it, as the commerce 
 of indemnity for loss. He says that the prevention 
 and repression compete with insurance. Prevention 
 demands great care and is very expensive; repres-
 
 INSURANCE AND SOCIALISM 627 
 
 sion costs less though it often has no effect; insur- 
 ance costs still less, but the accident happens. Wagner 
 and the other champions of the socialism of the State, 
 moved by an erroneous conception, which we have 
 criticized before 1 (that is, that with the progress of time 
 the functions of the State increase to the detriment of 
 the activities of private citizens), tend to make public 
 law re-absorb a great part of private law. We have 
 observed that society thus would travel over a road 
 that it has already been over and return to the epoch 
 of imperative law, in which the statutes provided for 
 everything and the State took part in all the business 
 of economic and civil existence. Conforming to this 
 principle, the same writers affirm that insurance is not 
 a business of free and private trade, but a public 
 institution, that is, it is the fulfillment of a duty 
 on the part of the State which must be substituted for 
 the companies. Public administration, they say, car- 
 ries .on the business of communication, water supply, 
 sanitation, and city illumination; if it represses the 
 causes of injury, it can well complete the system by 
 assuming the business of insurance. The insurance 
 companies are very complex and often resemble petty 
 States and are governed by men whose only interest 
 lies in their salary. The State should take over the 
 business of insurance, not with an object of gain, but as 
 a means of general well-being, for it would have no need 
 to make deceitful promises or pay large commissions to 
 solicitors. Private insurance contains always a great in- 
 justice in the relation of the premium to the risk. It 
 is not equitable that the farmer should pay a greater 
 premium for fire insurance for his home than the mil- 
 lionaire in the city pays for his magnificent home. In 
 general, the degree of risk is not the effect of a free act 
 
 1 Cf. 191 ante.
 
 628 PARTNERSHIP AND CONTRACTS 
 
 of will as in the case cited and a thousand others. Pri- 
 vate insurance is not possible for those who need it most ; 
 justice demands that the premium should have a relation 
 to the wealth of the insured, and the State becoming 
 insurer, could provide it for the poor and needy. 
 
 414. Criticism of the Socialistic View of Insurance. 
 A criticism of these articles has been made with great 
 acumen by Salandra, in his book "Un Casodi Socialismo 
 di Stato." Above all, we must note that a modern State 
 is not generally disposed to assume economic functions. 
 We have already seen that it has sold its land and no 
 longer competes in business with its citizens, but gets 
 its income chiefly from the customs. 1 To realize its 
 conception of its duties to protect the law and the 
 progress of culture and well-being, it takes part in 
 economic pursuits, if the private citizens have not 
 sufficient initiative, if it must destroy the pernicious 
 effects of a monopoly, or if it is a question of pro- 
 moting an industry. Such cases of governmental inter- 
 vention alleged by the socialists of the Wagnerian school 
 are related to public security and help, and not with 
 economic ends. City lighting, hygiene, and police are 
 examples of this. The prevention or repression of 
 causes of injury are duties of a State, since it must pre- 
 serve individuals from dangers that threaten all. The 
 benefit of insurance is obtained when an accident has 
 happened and the burden has fallen on the life or estate 
 of some individual. An injury must be avoided or re- 
 paired by him who caused it. Furthermore, it is 
 indubitably clear that individual management is more 
 economic than management by a society and the latter 
 more economic than administration by the State because 
 they are smaller and controlled by persons who are 
 trained managers and have an interest in the gains 
 l Cf. 192 ante.
 
 INSURANCE RATES 629 
 
 and are watched by the stockholders, who have cer- 
 tainly a more direct and keen interest than the members 
 of a civil government or political assembly chosen by 
 election. Insurance as an industrial enterprise which 
 renders cheap services, adapting itself to the habits, 
 needs, and prejudices of its members, is always better 
 entrusted to private citizens. Experience is the strong- 
 est proof of the truth of this judgment which shows that 
 the attempts by the State to carry on insurance have 
 generally been failures. 
 
 415. Insurance Rates are Determined by Calculation. 
 We must reflect that the essence of insurance is the 
 proportion of the premium to the risk. Insurance 
 rates are ascertained thro ugh mathematical principles by 
 calculation and cannot logically be subordinated to 
 ethical purposes. No one would wish to pay a higher 
 rate than was due so that another's rate might be lower. 
 Take away the principle of proportion and insurance 
 will vanish. Admitting that everyone is obliged to 
 insure and that some pay higher and some less premi- 
 ums than they should, it is clear that the first would 
 pay a tax so that the State could give an almost gratu- 
 itous service to the second. Such beneficence may be a 
 special duty of the State, whose legitimacy and conven- 
 ience it is not necessary to examine now, but certainly it 
 is not true insurance. Insurance is not a method of 
 equalizing fortunes and solving social difficulties. It does 
 not tend towards an equal division of wealth, as Wagner 
 believes. If it is true, says Zammarano in "L'lntra- 
 presa delle Assicurazioni," that the farmer cannot build 
 his house of brick or stone, but must build it of wood; 
 if it is true that he who does not enjoy good health 
 cannot be insured or must pay a higher premium; and 
 if he who has a field exposed to the destructive force of 
 hailstorms must pay more than he who has a field less
 
 G30 PARTNERSHIP AND CONTRACTS 
 
 exposed to this plague, insurance has no duty to repair 
 the social inequalities or to give wealth, strength, or 
 health to them that lack it. 
 
 416. Insurance is more Economic than Ethical. 
 The insurance business is not really a protective in- 
 stitution, because it looks to profits; charitable insti- 
 tutions, as savings banks, mutual aid societies, and 
 such, have no financial aim. Even the mutual insurance 
 companies (a kind of cooperative society) have really 
 a financial aim, the insured wishing to pay a less premium 
 for the risk with the increase in the number of policies. 
 He does a protective act who insures his life, house, 
 or harvest and not the company which gains thereby. 
 Insurance companies are of great social importance 
 dividing the total loss among a great number of stock- 
 holders. On one hand, they limit the individual loss, and 
 on the other hand they prevent great losses by the banks 
 and corporations, due to wide- reaching accidents, and 
 thus avoid a diminution of income. The great obstacle 
 to their development is the rate which remains high, 
 because competition is difficult. Zammarano observes 
 that the old life-insurance companies increase the com- 
 missions of the soliciting agents to take business from 
 their new rivals, and that the new associations are forced 
 to raise theirs more, creating thus an excess of expense 
 and not keeping, therefore, a reserve equal to the risks 
 assumed. The companies for their insurance against 
 injury unite and refuse any reinsurance to the younger 
 societies which do not adopt their rate. Mutual so- 
 cieties have no less need of agents, who demand the same 
 rate as the business companies pay; and they cannot 
 deny it because they must extend the sphere of their 
 business. It is futile to dream of a more efficacious and 
 economic control of insurance through the State with 
 the object of establishing competition among the private
 
 GUARD AGAINST TRICKERY 631 
 
 concerns, because in all the civilized countries of Europe 
 these attempts have been made and have not succeeded, 
 except in Germany, where there is a peculiar combination 
 of circumstances. A deficiency of the reserve fund, 
 in consequence of heavy expense, does not in short 
 policies ruin the concern, if it acquires every year a cer- 
 tain number of new policies. In such cases the new 
 insurance pays for the old and the business goes on until 
 the ascending movement stops, or many losses occur. 
 The salient point of the question is always the obtaining 
 of a reserve fund, the exact value of which should be pre- 
 scribed by law. It must not be forgotten that the matter 
 of insurance is too complicated and delicate to be easily 
 understood. Often the directors of the companies do not 
 understand it well. The insured knows nothing about it 
 and is without the company, and therefore can exercise 
 no supervision. The observations of Zammarano are 
 true and his deduction valid. The law is called upon to 
 harmonize the principle of freedom of trade with the 
 necessity of a serious protection of the rights of the 
 insured. If it were shown that this protection could 
 not be obtained except by the intervention of the State, 
 there would be a case where a reasonable exception 
 existed for preventive authorization and control by 
 the government in the case of trading corporations. And 
 this exception is not the only one, since no one doubts 
 the legality and propriety of the State board of bank 
 examiners for banks that issue notes. 
 
 417. The Law should Guard against Trickery. The 
 law should promote moral conditions for the better 
 development of social life and should give a free field 
 for productive labor. It should not protect wager- 
 ing contracts which are based on thoughtlessness 
 and idleness, creating, on one side, sudden and enormous 
 fortunes, and on the other, instantaneous desolating
 
 632 PARTNERSHIP AND CONTRACTS 
 
 ruin and misery. While the law, however, cannot 
 watch all the games of chance, it can watch the tricks 
 which lie within the exercise of corporations. This 
 guardianship can be exercised against speculation, 
 that is, to those contracts which do not entail the 
 acquirement of stock or the payment of money at the 
 moment of formation, but the payment in the future 
 of the difference in value not dependent on blind luck. 
 In the same way that particular knowledge is required 
 for the race course, the pursuit of arms and other exer- 
 cises, in the present case a knowledge of a special kind 
 is necessary in order to foresee the flux and reflux of 
 the values quoted on the exchange. Such knowledge 
 regards the commercial movement of values and their 
 tendencies. It is not blind luck which decides, but 
 certain facts which can only be foreseen after attentive 
 study and long experience.
 
 PROTOTYPE OF THE STATE 633 
 
 CHAPTER XVII 
 
 THE PRIMITIVE FAMILY. THE FAMILY AS 
 THE PROTOTYPE OF THE STATE 
 
 MATING AND THE INSTINCT OF REPRODUCTION IN ANIMALS. 
 THE THEORIES OF LUCRETIUS AND VICO. PRIMITIVE UNIONS. 
 MATRIARCHY. EXOGAMY AND RAPE. THE BEGINNINGS OF 
 THE DEVELOPMENT OF THE PATRIARCHAL FAMILY. THE PRO- 
 GRESSIVE INDIVIDUALIZATION OF RELATIONSHIP. THE PROCESS 
 OF SPECIFICATION, AND THE OBJECT OF THE FAMILY. 
 
 418. The Primitive Family. The Family as the 
 Prototype of the State. Individual man expands through 
 property, which represents acquired means, and de- 
 velops through reciprocal acts, the result of a common 
 will working for determinate useful objects. He begins 
 his development with family relations, which are the 
 closest and first form of society. The family is an 
 ethical organism in which many consciousnesses inter- 
 penetrate, many wills agree, forming a common con- 
 sciousness with a common spirit and will. It is the 
 intimate union of nature, based on feeling, and for a 
 definite need. In the evolution of ethico-juridical forms, 
 it shows progress as it affects individual property and 
 obligations, because man is no longer merely individual, 
 but connotes an ethical organism. It is through the 
 family that the individual becomes the abstract man, 
 who is seen more fully in civilization, in a State, and 
 in a system of States. If the family is a real union, 
 civilization and the State are human communities based 
 on the distinction of interests and the principles of
 
 634 THE PRIMITIVE FAMILY 
 
 reason. The system of States presupposes the human 
 factor in every nation. 
 
 419. Elementary Family among Animals. The 
 state of matrimony and the family have their distinct 
 prototypes in some forms of intercourse and co-exis- 
 tence among species of animals. The lowest and most 
 general satisfaction of the instinct of reproduction is pro- 
 miscuity. The sexual life of most animals follows 
 organic impulses, blindly, without showing preferences 
 or attachments which amount to anything like choice 
 or fidelity. Polygamy exists among the animals which 
 live in groups, where there is a predominance of females 
 over males. Polyandry is very rare, because the female 
 is not as strong as the male and cannot curb and check 
 the extravagances of a male seraglio. Monogamy is not 
 rare among the species which are scattered, living in 
 couples either because of difficulty in finding food or 
 because of their unsociable nature. Some species give 
 marvelous examples of monogamy, where widowhood 
 ordinarily results in the death of the survivor. There 
 are examples among animals, too, where the instinct of 
 reproduction has lost its original egoistic character. 
 Among the ants reproduction, following a system for 
 the division of labor, is assigned. The search for any 
 kind of domestic life, however, has been fruitless in the 
 lower species, which pay but little attention to their off- 
 spring, and leave preservation to chance. With reptiles, 
 the female gives some care to her eggs, while the male 
 gives her food. It is in the female that the love of young 
 first awakens; in the male it comes later and with less 
 intensity. With both parents, this love lasts only until 
 the time of weaning; hence the short duration of domestic 
 relations even among the monogamic animals. Filial 
 affection is a pure exception ; the larger apes have a kind 
 of family, in which the children and the parents live to-
 
 ORIGIN OF HUMAN FAMILIES 635 
 
 gether for a certain length of time. The head is a male 
 adult who keeps his authority only until he is abandoned 
 or murdered by his own children. The basis of domestic 
 obedience is force, making a command binding as long 
 as the father is in a position to punish those who disobey. 
 As a general rule, the female, among the mammiferous 
 animals, is the centre about which the family is grouped. 
 If the male remains a member, it is due more to her at- 
 tractions than to love of progeny. 
 
 420. Former Views of the Human Family. Coming 
 now to regard the phases of human matrimony and 
 family relations, we see to-day in all science which 
 deal with man and civil institutions that what existed 
 in the past is still observable in the living species. 
 As in like studies, not a few types, believed primitive 
 for many years, have been shown to be posterior forms 
 more or less imperfect, so some social facts, though orig- 
 inal and initial, appear, in the light of later analysis, 
 derivative and historic in the true sense. One of these 
 facts is the patriarchal family, which until recently has 
 been represented as an elementary natural group, exist- 
 ing from the beginning of humanity, and consisting of a 
 father with one or more wives, and their offspring. The 
 relationship was determined through the father, who was 
 the absolute owner of the wives, children, and property. 
 So the patriarchal families, growing larger, brought about 
 the "ytvos," "gens," or "clan." From the multiplication 
 of such unions the tribe was born ; whence civil commu- 
 nities were derived. 
 
 421 . The Modern View of the Origin of Human Fam- 
 ilies. Recent studies of the oldest records and profound 
 researches into legends and the customs of modern sav- 
 ages have led to the belief that the patriarchal family was 
 not the beginning of society. It has been demonstrated 
 by these studies and researches that at the beginning
 
 636 THE PRIMITIVE FAMILY 
 
 there was a horde, ignorant of individual relationships, 
 because its members were not considered as children of 
 certains persons, but rather as children of all the fathers 
 and mothers in the community. Only later did the horde 
 break up into smaller groups which began to lead separ- 
 ate lives. From that moment can be traced the gene- 
 sis of matrimony, or the union, more or less stable, of a 
 great or less number of individuals, and consequently 
 the genesis of the family. Primitive families were based 
 on maternal relationship, because of the customary un- 
 certainty of the father's identity, and had a feminine 
 genealogy, differing from the patriarchal family, which 
 developed in a way which presupposes the certainty of 
 the father. 
 
 422. The Maternal Family Preceded the Paternal. 
 As this was the course of development it is clear that in 
 the remote times of the common ownership of women, 
 the right of the horde must be considered as the "jus 
 naturae," and that afterwards the "jus naturae" was 
 the right of the mother, through whom the son of a 
 dead man's sister succeeded to his goods, and sometimes 
 to his political dignity or sacerdotal office, together with 
 the obligation of revenge. It is easy to understand that 
 the father's right could be changed to a natural right 
 only by the slow and incessant development of ages. 
 
 423. History of Researches into the Origin of the 
 Family. It has been said that these studies were begun 
 in the XVI Ith century by Lafitau, in his work "Les 
 Coutumes des Sauvages Americaines," and that in the 
 XlXth century they were followed, extended, and sys- 
 tematized by D'Eckenstein, and Bachofen in his "An- 
 tiquarische Briefe," by McLennan in "Origin of Con- 
 sanguinity and Primitive Conditions of Matrimony," by 
 Morgan in "System of Consanguinity and Affinity," by 
 Lubbock in "Origin of Civilization and the Primitive
 
 VICO'S THEORY 637 
 
 Condition of Man," by Girard-Teulon in "Les Origines 
 du Mariage et de la Famille," by Spencer in his "Prin- 
 ciples of Sociology," and by Letourneau in "Sociologie 
 d'apres 1'Ethnologie." We may add that Lafitau, 
 D'Eckenstein, and Letourneau furnish only data and 
 special facts, while the others coordinate general philo- 
 sophical and historical discoveries. Vico, however, has 
 been forgotten, who, before all the writers mentioned, 
 published his theory, almost identical with the modern 
 doctrine, as we will see in the following paragraph. 
 Lucretius also has been overlooked, who in the Fifth Book 
 of his immortal poem, "De Natura Rerum," in speaking 
 of the primitive ages, says: 
 
 "Et Venus in silvis jungebat corpora amantium: 
 Conciliabat enim vel mutua quamque cupido, 
 Vel violenta viri vis atque impensa libido, 
 Vel pr&lium, glandes, atque arbuta, vel pira lecta. 
 
 And in picturing the character of a later date and more 
 advanced period, the Latin poet writes: 
 
 "Inde casas postquam, ac pellets, ignemque pararunt, 
 Et mulier coniuncta viro concessit in unum: 
 Castaque private Veneris connubia Iceta 
 Cognita sunt, prolemque ex se videre creatam: 
 Turn genus humanum primun mollescere ccepit." 
 
 424. Vico'sTheory of the History of Family. Provi- 
 dence, teaches Vico, at the first beginning of nations 
 decreed that the strongest men of gigantic stature 
 should wander on the heights of the mountains like 
 beasts, which too are strong. Frightened by the 
 first thunderbolts after the Flood, they fled into caves 
 and surrendered themselves to a superior force, which 
 they called Jove; and though proud and cruel, they
 
 638 THE PRIMITIVE FAMILY 
 
 humiliated themselves in their terror before a divinity. 
 In such a state of human affairs, we can imagine no 
 other plan which Divine Providence could have adopted 
 to cure them of their bestial vices in the great forests of 
 the earth in order to introduce the ways of human civil- 
 ization. Thereupon there were formed republics called 
 monastic, with one ruler who was guided by the Most 
 High, who they believed made and hurled those thunder- 
 bolts in which they saw the true light of God, the 
 Ruler of mankind. To Him all things were subject. 
 They imagined the rulers to be divine. As subjects they 
 feared and revered them as His representatives. There- 
 fore, torn in the struggle between frightful superstition 
 and bestial lust (in such men most violent) and feeling 
 that the aspect of heaven was terrible to them and 
 forbade them the use of love, these men held the prompt- 
 ings of the lusts of the flesh in check. And beginning 
 to use human liberty, which restrains the emotions of 
 desire and gives them the direction which (not coming 
 from the body from which desire comes) must come 
 from the mind, and therefore be proper to man, their 
 nature was changed, and seizing the women, whose 
 nature was unwilling and resisting, they dragged them 
 within their caves and kept them in life-long slavery. 
 These unions, the first which were modest and religious, 
 were the beginning of matrimony, by which, of known 
 women there were born known children by known 
 fathers; thus the family began. The fathers ruled with 
 Cyclopean control, governing their children and wives 
 as their unbending and cruel nature prompted them. 
 Taught in such a school, at the founding of the cities 
 men were found to fear the imperial edicts. Providence 
 created certain economic governments of monarchical 
 form under the family rulers who excelled in sex, age, 
 and worth, in a state which could be called a state of
 
 VICO'S THEORY REVIEWED 639 
 
 nature, but which was the patriarchal age. They had 
 formed the first natural states of a religious, chaste, and 
 binding order; and limited to their own land, no longer 
 able to wander over the country as they had done be- 
 fore in their savage ways, they had to kill the beasts 
 for food for their families. And since they could no 
 longer wander to find pasturage, they had to conquer 
 the earth and sow seeds. And all this was caused by 
 the savagery of human nature. After a long period, 
 hunted down by their own evil deeds, which were bring- 
 ing about an infamous communion of possessions and 
 women, men who were impious, with no fear of God, 
 shameless and weak, unbridled in incest and bestial 
 love, wandering and alone on the great plains and in 
 the valleys, with their lives in danger as the result of 
 their infamous communion, sought refuge with the 
 fathers, who received them into their protection, to- 
 gether with their followers, who increased the family 
 kingdoms. 
 
 425. Vico's Theory of the History of the Family 
 Reviewed. We can briefly repeat that part of the con- 
 clusions of the "Scienza Nuova," of which some frag- 
 ments have been cited before (seriatim) for a different 
 reason. Vico says in the most open manner that be- 
 fore the modest and religious human marriages, that is, 
 before matrimony and the family, of certain fathers 
 with certain mothers and certain children, there was 
 a shameful communion of things and women in which 
 impious, shameless, and wicked men lived their 
 lives. This communion ended, says Vico, when they 
 forcibly carried off to their grottoes the unwilling and 
 resisting women. The women were not modest or 
 pure, but did not wish to be reduced to the service of 
 man. The men were solitary sovereigns or princes, 
 the heads of economic governments of monarchical form.
 
 640 THE PRIMITIVE FAMILY 
 
 Now a kingdom is a derivative of strong control, as a 
 popular republic is a derivative of freedom, and the 
 oligarchy is a result of protection. Control, freedom, 
 and protection are the three elements of the idea of law 
 corresponding to knowledge, will, and power. In Vico's 
 judgment matrimony is bound up with the right of 
 property, and does not result from monarchical govern- 
 ment. It was accompanied by the need of killing beasts, 
 of conquering the earth, and of sowing seed in order to 
 nourish the families by which and for which the fields 
 were cultivated. Vico, however, is wrong in transform- 
 ing the wild state so suddenly into the age when men were 
 modest, pious, and wise ; thus the heroic age which fol- 
 lows the divine seems to be a step in the wrong direction, 
 through which man passed from the age of shameful 
 communion to the times of modest and religious mar- 
 riage with certain fathers, that is, to the time of the 
 patriarchal family. Naturally, Vico, as in his day 
 there were not the many aids from different modern 
 studies, did not discover and could not discover all 
 those factors found or surmised to-day by Bachofen, 
 McLennan, Morgan, Tyler, Lubbock, and Giraud-Teulon. 
 But the great author of the "Scienza Nuova" left the ques- 
 tion open, so to speak, and recognized implicitly the 
 correctness of deductions from the customs of modern 
 savages. He taught that when men can form no idea 
 of distant and unknown things, they can imagine them 
 by the aid of things known and present. But we must 
 not forget a wise warning of Darwin that quite fre- 
 quently the licentiousness of savages is the result of 
 decadence. 
 
 426. Modern Example of the Community of Women. 
 Bachofen, McLennan, Morgan, Lubbock, and Giraud- 
 Teulon agree with Lucretius and Vico in recognizing a 
 primitive period of the communion of women, and invoke
 
 COMMUNION OF WOMEN 641 
 
 the authorities of ancient and modern writers. In 
 China, women were common until the end of the reign 
 of Fouhi, and in Greece until the days of Cecrops; the 
 Massageti, Nasimonisans, and Auseans did not know 
 of matrimony according to Herodotus and Strabo. 
 Strabo and Solon say that the Garamantians were in 
 the same condition, and Zenophon adds to this class the 
 Mosynocians, who scandalized the soldiers of Cyrus by 
 their lack of any sense of shame. The authors cited 
 adduce many facts to prove that the most absolute 
 communism exists in some parts of New Zealand, South 
 America, of the Andaman and Nicobar Islands. The 
 system is found, too, among some negro people who 
 have no family names and distinguish the individuals 
 only by some peculiarity, as "Long" or "Lame." 
 
 427. History Proves Original Communion of 
 Women. Among the facts alleged as methods of deter- 
 mining relationship, the homes and some of the 
 strange nuptial rights, which belong exclusively to the 
 system of preexistent community of women, demand 
 special attention. The careful researches of Morgan 
 show that relationship was not originally between 
 individuals, but a relation between the individual and 
 the tribe. The child at first recognized as his fathers 
 all the adults of the tribe, and as mothers all the 
 women of the tribe who could have borne him. The 
 inhabitants of the Sandwich Islands, for example, until 
 the last century, had only five classes of relations. The 
 first included the individual, his brothers, sisters and 
 cousins; the second included the father, mother, and 
 their brothers, sisters, and cousins, who were, how- 
 ever, all called fathers and mothers; the third con- 
 sisted of the grandfather, the grandmother, and their 
 brothers, sisters, and cousins, and formed the class 
 of grandparents; the fourth consisted of the children
 
 642 THE PRIMITIVE FAMILY 
 
 and their cousins, all recognized as children; the fifth 
 class included the grandchildren and their cousins, 
 and was the class of grandchildren. According to this 
 classification or relationship, all the members of a tribe 
 were brothers and sisters to each other; the uncle looked 
 upon his nephew as his son, and the nephew was regarded 
 as the son of his aunt. In a country where a man calls 
 his nephew or niece his child, it is reasonable to suppose 
 that marriages are allowed between brothers and sisters. 
 Travelers say that the missionaries encounter the greatest 
 difficulty in those islands in teaching the women chas- 
 tity. Adultery, incest, and fornication are sanctioned 
 by custom and religion. In conclusion we may add that 
 incest was a general rule in antiquity, as can be seen 
 from the fact that the gods and heroes married their 
 sisters. The Egyptians and Persians imitated this cus- 
 tom. Diodorus says that the Egyptian king was in 
 duty bound to marry his sister; Plato testifies that the 
 Pythian oracle held such a union legal and proper accord- 
 ing to the laws of nature. The other fact worthy of 
 study is the houses situated in the Indian territories 
 of the central and southern United States. From one 
 hundred to one hundred and fifty feet long, they are 
 capable of giving shelter to forty or fifty families, that 
 is, to three or four hundred persons. The huge cabin 
 of the Indians of Columbia could hold a hundred people, 
 and there are villages in that country which consist of 
 one or two houses of this size. Mexico, the regions of 
 Yucatan and of Guatamala, were, before the arrival 
 of Europeans, full of such villages, which furnish 
 good testimony of the promiscuity of life. The early 
 Spaniards who discovered these countries believed 
 these constructions were palaces. 
 
 428. Traces of Primitive Promiscuity in Many Mar- 
 riage Rites. When the exclusive possession of one
 
 PRIMITIVE PROMISCUITY 643 
 
 woman by one man appears in history, we must con- 
 sider whether this institution of positive law violates 
 and is contrary to the primitive law of the community 
 called the "jus naturae." It was recognized as an in- 
 fraction of natural and religious law because the fecun- 
 dity of women like that of the earth or the Great 
 Mother should not suffer limitations, whence arose the 
 need of a tribute to be paid to the offended deity 
 and of an expiation to be rendered to the gods; trib- 
 ute and expiation consisting in enforcing a period of 
 provisional promiscuity on the woman to be married. 
 The old customs show this, which are found in strange 
 and scandalous cults, celebrated in homage of the god, 
 protector of fecundity. The Lydians, Sardinians, and 
 Babylonians made a sacrifice of their chastity before the 
 wedding (as Herodotus and Strabo report), and in crises 
 all the women of war were forced to offer their shame 
 as an expiation to placate the divinity outraged by their 
 violation of the marriage law of nature. The magis- 
 trate of Locros demanded in a day of public danger the 
 sacrifice of the chastity of the women in the Temple of 
 Venus. Strabo himself says that the daughters of good 
 family, who devoted themselves for a certain time to the 
 cult of Anaitis, were most sought after as wives; that 
 such expiation was necessary in Armenia and in some 
 parts of the Island of Cyprus. Herodotus speaks of the 
 same custom among the Thracians. And Diodorus Sic- 
 ulus states that in the Balearic Islands, at Majorca and 
 Minorca and in other places, the bride for the first night 
 belongs to all the guests. In the Mahabharata, we read 
 that women, like cattle, were held in common, and that 
 Cwetaketom was the first to introduce private possession. 
 In India there is a religious sect called "Vira-Sriva," 
 that hold men equal by the "lingam." The priestesses of 
 Siva and Krishna obey the same religious commands, and
 
 644 THE PRIMITIVE FAMILY 
 
 their depravity is famous. In that country a woman with- 
 out a husband and a widow can sacrifice to the idol in a 
 temple of Tulava, but from the moment of sacrifice is 
 forced to give herself to all. Strabo says on this subject 
 that a Parthian who has had two or three children by one 
 woman can leave her and marry another. To-day the 
 Eskimos and Indians of North and South America, the 
 tribes of Polynesia and Australia, the negroes of East 
 and West Africa, like the Caffirs, give their guest tempo- 
 rarily some of their wives. Some Brazilian tribes do the 
 same for their prisoners of war whom they can kill and 
 eat.' Among the ancient Peruvians, in Ethiopia and even 
 now among many aboriginal tribes of India, in Burma, 
 Cashmir, southern Madagascar and New Zealand, the 
 bride belongs for the first night to all the relatives and 
 friends. In some parts of India, in ancient Abyssinia, 
 among some classes in Brazil and Peru, this "jus primae 
 noctis" is exercised by the chieftain and priests. In the 
 primitive nations of Greece, which were in closer relations 
 with Asia, Corinth for example, there were a special 
 body of priestesses with the object of forcing their fellow- 
 women to the sacrifice of their shame. Courtesans 
 are treated with great regard in some societies because 
 they continue an old custom, sanctioned by religion. The 
 constant discussion of poetry, philosophy, and politics 
 developed the ideas and taste of Athenian courtesans. 
 Their houses became the places of profitable leisure. 
 Who does not know that Socrates argued with them and 
 that Pericles was often in the house of Aspasia? In 
 India, Abyssinia, and Java, they enjoy a good name and 
 are treated with respect. All these facts disprove Spen- 
 cer's claim that the primitive community of women con- 
 tained no legal idea. 
 
 429. Love a Later Development. The primitive 
 unions must have been without sentiment or love.
 
 LOVE A LATER DEVELOPMENT 645 
 
 They consisted in animal intercourse, being founded 
 on the slavery of "women. They must have been 
 temporary and completed without rites, if we argue 
 from the union of modern savages. Lubbock gets to- 
 gether the different reports from all travelers on this 
 point and teaches things of no small interest for our 
 theme. Hottentots and Caffirs are so cold and indiffer- 
 ent as to induce those who have studied their customs 
 to affirm that there is no love in their union. There are 
 Indian tribes in both Americas who have no word for 
 "fear," and there are several languages which have no 
 verb "to love." Missionaries, in translating the Bible 
 into these languages, are forced to invent a vocabulary 
 to express this idea. Among the Osages and Cherokees, 
 there cannot be found a single poetical or musical expres- 
 sion that reveals love. At Yariba in central Africa, the 
 natives marry with the greatest indifference, as if they 
 were engaged in buying or selling grain. The tribes in- 
 habiting the hills in Chittegong (India) look upon matri- 
 mony as simply a bodily union and a utility or means of 
 getting their food cooked. The young men in Australia 
 pay the women for the quality of services they can ren- 
 der. They are treated with the greatest brutality, being 
 beaten and struck with spears upon every occasion. 
 Travelers have seen women with their backs entirely 
 covered with scars. In some parts of Paraguay and Abys- 
 sinia, the marriage bonds are so light that the husband 
 and wife can separate upon mutual consent. They have 
 no sense of shame according to the stories of all the trav- 
 elers. The Hassaniyeh Arabs have a form of matri- 
 mony which lasts three days; on the fourth, the woman 
 is entirely free. In Ceylon they have trial marriages 
 for five days ; at the end of this time the marriage can be 
 annulled or confirmed. Among certain tribes of south- 
 ern India, girls of fifteen or twenty years are married
 
 646 THE PRIMITIVE FAMILY 
 
 to boys of five or six. The girl lives with her father-in-law 
 or with a maternal uncle or cousin. ' If there are children 
 of that union, the boy is the legal father, who in his turn 
 has issue by a woman married to some other child, his 
 own children being half grown. In almost all marriages 
 between savages there is a dearth of rites or ceremonies. 
 The Badagas of Hindustan, the Kirumbas, a tribe living 
 in the hills of Nilgherry, the Keriahs of central India, 
 the Indians of California, the Kutchin Indians, the Red- 
 skins of the United States, the Asawaks of South America, 
 the tribes of Australia and Brazil, the people of Abys- 
 sinia, of West Africa, the Ashantis and Hottentots, have 
 no witnesses, magistrates, or priests for a wedding, but 
 reserve them for the ceremonies accompanying circum- 
 cision and tattooing. Montesquieu is wrong, therefore, 
 when he says that in all ages marriage has been a reli- 
 gious ceremony. 
 
 430. Development from Promiscuity and Monogamy. 
 It is probable that, as time went on, the system of 
 communion was restricted by means of maternal rela- 
 tionship; thus the family was created, that at first was 
 formed by the mother, the father being generally un- 
 known. The family began to be formed through 
 the mother. The name of the mother alone descended 
 and the husband represented only a secondary con- 
 sideration. Now, matriarchy, although unilateral, is 
 always superior from an ethical and civil point of view 
 to generic relationship, which is a relation between the 
 individual and the community and excludes the family 
 as a particular and distinct society. Bachofen regards 
 the passage from communion to matriarchy as a revolt 
 by the women who were ashamed of their state and 
 succeeded in gaining supremacy. He calls the second 
 state material, and the third, or the period of paternal 
 rights, in which the father is recognized as the author
 
 SANDWICH ISLAND EXAMPLE 647 
 
 of life, and the mother as the nurse, the spiritual period. 
 It seems that Bachofen is right in calling the second 
 period material, because in it the family appears on its 
 natural foundation. But we believe him wrong in stating 
 that the cause of the change from the first to the second 
 state was a revolt by the women, because we cannot be- 
 lieve that in those barbarous times, the sense of shame and 
 unity of action should have been so developed among 
 women as to allow a determined reaction to conquer the 
 men who were the stronger. The legend of the Amazons, 
 so general and extensive, has probably been formed 
 through a fantastic attraction of the existence of women 
 familiar with politics. Bonghi, in his "Lezioni di Storia 
 Antica," says that popular fancy has thus drawn the 
 change from the feminine rule to masculine, from the 
 two different states of the family. It was believed the 
 rule of the women preceded that of the men, and 
 that the women, when heads of the family, were heads of 
 the State as well. 
 
 431. The Sandwich Island Example. The transi- 
 tion from the system of community to that of matri- 
 archy is clearly illustrated by the natives of the 
 Sandwich Islands. Communion in these islands is 
 becoming restricted, and the union of brothers and 
 sisters are few. On one hand, the brothers begin by 
 owning women in common; on the other, the sister lives 
 in more easily broken conjugal relations with a certain 
 number of men. In the last century, there has been a 
 great change, because the family of feminine relationship 
 has been instituted. The system of relationship through 
 women still exists in Australia, in the Ladrone Islands, 
 in Fiji and Tonga, and in other parts of the Pacific Archi- 
 pelago; in the Caroline Islands, among the people who 
 live between Burma and Siam, in some of the tribes of 
 Ceylon, in the Maldives, upon the coasts of Malabar,
 
 648 THE PRIMITIVE FAMILY 
 
 among some of the primitive peoples of India, among the 
 greater number of the Indians of North America, among 
 the Arawaks of South America, in Senegal, in Loango, 
 in Congo, among the Herreros and Caffirs, on the coasts 
 of Guinea, and among the Touareng. 
 
 432. Example of Ancient Matriarchy. The ancient 
 Iberians, the primitive people of Asia Minor, the Ly- 
 cians, according to Herodotus, the inhabitants of 
 Locros, according to Polybius, and the Etruscans, who 
 have left mortuary inscriptions with the name of the 
 mother and not the name of the father of the deceased, 
 lived under the same system. There are bilingual 
 Etruscan inscriptions which give the name of the de- 
 ceased and of his or her mother, as in the following 
 examples: "L. Caius Caulia natus; Thania Sudernia 
 nata." In other inscriptions, there is found the name 
 of the mother alone and not that of the deceased, for 
 example, "Perrica natus." There are still others to 
 which there is added a Latin translation which does 
 not contain the name of the father. This addition is 
 a result of Roman custom or of the personal knowledge 
 of the lapidary, as Corssen says, in his book, "Ueber die 
 Sprache der Etrusker." In the museum at Naples 
 the only bilingual Etruscan inscription is of the last 
 kind: "VI, Alfni Nuvi Cainal." This Corssen trans- 
 lates, "Velus Albinus Novius Caina (mother) natus." 
 Cainal is a feminine proper name found in twelve other 
 inscriptions. The Latin translation of the inscription is 
 as follows: "C. Alfius A. F. Cainnia natus." Writing 
 this verse in full we have, "Caius Alfius Auli filius Cain- 
 nia natus." Herodotus observes that in Egypt the 
 women took part in public life, carrying on business and 
 managing industries, while the men stayed at home and 
 did the weaving. Diodorus adds that among the many 
 benefits of Isis, the Egyptian queen had more power
 
 ANCIENT MATRIARCHY 649 
 
 and was more respected than the king, and that a 
 private citizen was part of his wife's property according 
 to the terms of the nuptial contract. Many mortuary 
 inscriptions in Egypt contain the name of the mother 
 and not that of the father of the deceased, and if they 
 give the name of the latter, they always give the name 
 of the mother too. In fact, Isis is represented as the 
 immortal beginning of things, the great life-giving 
 divinity, while Osiris was the principle of fecundity, 
 but was only temporary and mortal. With the im- 
 portance of Isis came the power of the sister-wives of 
 the Pharaohs and the legal duty, reported by Herodotus, 
 of the sons and daughters to support their aged parents. 
 Similar relations between the sexes is found in the 
 countries of Angola, among the Timannians, the 
 Kurankos, the Sulimas, among the Bazes of southern 
 Egypt, among the Bogos and the Beni-Amer. And 
 the great power of the queen or sister-wife is found 
 to-day in the greater number of the African kingdoms in 
 which by the side of the chief there is a woman given 
 the dignity of "makonda," a dignity and power generally 
 belonging to the chief's sister who is at the same time 
 his chief-wife. In ancient Athens, according to Varro, 
 in a passage preserved by St. Augustine, the children 
 received the name of the mother. In the Orestes of 
 ^Eschylus there is preserved a mark of relationship 
 through the mother, because the Erinnyes, representing 
 the old law, demand the condemnation of Orestes, the 
 murderer of his mother, by saying that Clytemnestra 
 was no relation of her son, though the blood of the 
 man who had been murdered and Apollo, the champion 
 of the new law, implore mercy for Orestes, claim- 
 ing that the mother was not the creator of her son, 
 but the nurse of the seed placed in her breast. The 
 Erinnyes interrupt the discourse and say that the
 
 650 THE PRIMITIVE FAMILY 
 
 young god wishes to destroy the old law, and there- 
 fore the old gods. 
 
 433. Inheritance where the Genealogy is Maternal. 
 As we have observed before, in those countries where 
 there is a feminine genealogy, the son of a man's sister 
 and not his own is his heir. Such was the law of inherit- 
 ance among the Ethiopians, according to the statement of 
 Herodotus and Strabo. The Mahabharata tells of 
 King Vasuki, who wanted an heir and defender. 
 This prince did not think of taking unto himself a wife, 
 but sought a husband for his sister, who was a man 
 marked by the gods, to lay with the bride but one night, 
 and in due time the hero Astika was born, who was the 
 king's heir. The legend of the Mahabharata shows that 
 the same law of inheritance existed in India in the 
 same form that it to-day holds among the natives. 
 It is still existent in Nubia, in the Soudan, in Negrizia, 
 on the coasts of New Guinea, along the lakes and streams 
 of East Africa, and along the Zambese, among the Bas- 
 sutos, the Tourarengs, the Herreros, in Madagascar, 
 among the Bogos, Battas of Lunatra, and on certain 
 islands of the Pacific, with the Tlinkithes, the Kenayes 
 of Russian America, in Mexico, in Peru, among the 
 Indian tribes of North America, and in Malabar. In 
 Africa, the son inherits from his father only his weapons. 
 In Madagascar, among the Touarengs, the Herreros, 
 and among the Redskins, a son of a sister inherits 
 the political dignity and sometimes the sacerdotal 
 duties of his uncle under this system of relationship. 
 The duty of revenge follows the feminine genealogy 
 where the latter exists, and falls to the lot, not of the 
 son of the murdered man, but to his maternal nephews. 
 
 434. Endogamy and Exogamy. If humanity has 
 developed from the state of communion to a period 
 of relationship by means of women, it is logical to pre-
 
 ENDOGAMY AND EXOGAMY 651 
 
 sume that the first tribes or groups of relatives were 
 constituted under the system of descent from woman 
 to woman. McLennan thinks that the organic prin- 
 ciple of the tribe (in the oldest antiquity) has been 
 exogamy, that is, the prohibition of marriage between 
 individuals of the same totem. Exogamy must owe 
 its existence to marriage by capture, and the capture 
 was at first actual and real, later symbolic. He has 
 found exogamy in China, Siberia, Tartary, India, 
 Circassia, in both the Americas, Australia, the Islands 
 of the Pacific, among the Celts, and in Scotland. 
 The law had little regard for women among primitive 
 people who used to kill whatever girls were born, look- 
 ing upon them as a cause of weakness likely to become 
 later an incentive for attacks by their neighbors. It 
 seems to us that this doctrine sheds much light on cer- 
 tain facts which have been but little understood until 
 our own day. Exogamy produces rapid changes of 
 nationality without immigration or war because the 
 mother is of a hostile tribe. It furnishes us the reason 
 of the custom that the Redskins, for example, have 
 of calling a woman's son the son of her brother and the 
 nephew the son of the sister. The Chinese still call 
 boys the children of their uncle, and the nephews, de- 
 scendants of their aunt. It is clear that where exogamy 
 prevails promiscuity is restricted, and thus a great 
 progress is made because there can be no marriage be- 
 tween brother and sisters ; but the promiscuity does not 
 cease, as is often argued from this. It forces us to wonder 
 at what period these marriages of brothers and sisters 
 disappeared. As a natural consequence of the necessity 
 which brought about exogamy, the idea of incest was 
 born, which made its appearance in strange forms. 
 In Ceylon, the father is forbidden to look at his own 
 daughter after she has reached the age of puberty,
 
 652 THE PRIMITIVE FAMILY 
 
 and the same prohibition is placed upon the mother in 
 respect to her son. In Asia, among the Mongols, in 
 Africa, among the Bassutos, the daughter-in-law must 
 hide when she sees her father-in-law. Among the Ara- 
 waks, a man is not allowed to look at his mother-in-law. 
 Among the Caffirs and Redskins, the latter cannot 
 pronounce the name of her son-in-law. In the Fiji 
 Island, the brothers, sisters, cousins, parents, and chil- 
 dren-in-law cannot speak nor eat together. There are 
 analogous customs in Australia, India, Borneo, and 
 West Africa. Lubbock believes that marriage by cap- 
 ture could coexist and did coexist with the system of com- 
 munion. But marriage by capture has probably been 
 the beginning of individual marriages. The woman 
 stolen from another tribe became by right of war the 
 exclusive property of the captor. From this Lubbock 
 argues that exogamy is the result of capture, while 
 McLennan looks upon it rather as the cause. The 
 former disagrees with the latter upon the alleged motive 
 of exogamy because infanticide was not limited to the 
 girls, but extended as well to the boys, as it does in Aus- 
 tralia. Besides, there are some tribes who have mar- 
 riages by capture and at the same time are endogamous ; 
 the Bedouins, for example, recognize the right of mar- 
 riage by capture, and can at the same time marry a 
 cousin upon the payment of a certain fine. Giraud- 
 Teulon does not think that the murder of the girls was 
 a cause of exogamy, because the custom of infanticide 
 must have been common and reciprocal to the various 
 tribes, and therefore would have rendered exogamy and 
 capture impossible. Spencer adds that the murder of 
 the girls must have been equalized by the great mortal- 
 ity of the young men in the almost constant state of 
 war. He adds that polyandry, the consequence of 
 McLennan's theory, does not always accompany exog-
 
 GENEALOGY 653 
 
 amy. Spencer tries to base exogamy upon a theory of 
 booty, because the woman is one of the main objects 
 to be taken from the enemy, and such is the purpose of 
 the warriors. Since the warriors were the most impor- 
 tant men in the community, the practice of marrying 
 foreign women became general, and acquired a religious 
 sanction. Endogamy is found among the peaceful 
 tribes, while exogamy is found in the warlike and vic- 
 torious ones; but how could it happen, we must ask 
 Spencer, that the warlike tribes of New Zealand are 
 endogamous? But in whatever way we look at it, it is 
 certain that there was, in the age of which we speak, a 
 necessity of obtaining by capture the women of another 
 tribe. In fact, without this necessity, the men would not 
 have at great risk of life sought their wives from the 
 enemy. The capture at first is brutal and ferocious, as in 
 Australia, New Zealand, some of the islands of the Paci- 
 fic and South America. The men of Australia, when 
 they discover a woman without protection, stun her with 
 a blow of a "dowak," drag her by the hair to the neigh- 
 boring brush, and wait until the poor creature comes to 
 herself. So it is in the country around Sidney, at Bally, 
 and in other places. Later on, the capture acquires a 
 symbolic form; as a symbol it exists in India, in the 
 interior of Asia, among the Malasians, in Africa, and 
 among the ancient Greeks and Romans. 
 
 435. Maternal Genealogy is Physical, the Paternal, 
 Spiritual. The relationship by means of women, being 
 derived from a physical certainty, should appear as 
 an institution of natural law. On the contrary, the 
 relationship by means of men should be regarded as a 
 creation of civil law, because it presupposes a free 
 recognition of the bonds of relationship, a voluntary 
 and reflective act which is connected with an abstract 
 presumption. A child can only be the child of one
 
 654 THE PRIMITIVE FAMILY 
 
 woman, but it may be the child of any of several men. 
 If the relationship by means of men requires reflective 
 acts and abstract presumptions, it is evident that it must 
 be posterior. The sentiment of paternity in its origin has 
 not, nor can it have, a character truly ethical. Pater- 
 nity at first was a relation of slavery and later became a 
 method for the acquisition of wealth among modern sav- 
 ages, as it is with those that live on the coast of Guinea. 
 The father himself is often seen selling his own children 
 as slaves and the children, when grown, ambush the 
 father and sell him in his turn with the greatest pleasure. 
 In some countries in South Africa, the children are con- 
 sidered animals to be given as food to the wild beasts, 
 and the natives protect themselves from lions by making 
 traps, with babies as bait. 
 
 436. Wide Extent of Polyandry. It seems that 
 the collection of a group around a man was not always 
 personal; polyandry among brothers is a proof of this. 
 And polyandry is not a result of poverty because it 
 existed in rich tribes or among rich individuals of the 
 tribes. If not universal, it was most extensive, to judge 
 from the traces of it. For example, the five brothers 
 Pandava, heroes of the Mahabharata, all married the 
 beautiful Draupadi. The Bretons lived in polyandry, 
 according to Caesar. To-day, polyandry is found in Asia ; 
 Thibet, Buchavia, in the Himalayas, in Cashmir;and on 
 the coasts of Malabar, in Ceylon, New Zealand. Among 
 the inhabitants of Thibet, the children and goods 
 belong to the head of the family, and descend by 
 right of primogeniture. Among the Todas, the first 
 born is given to the primogenitus ; the second child 
 is assigned to the second eldest of the brothers. A 
 man among a polyandrous race who has no brother 
 associates with some stranger, or if he does not so 
 desire, remains single.
 
 PATERNITY 655 
 
 437. Paternity a Derivation of the Right of Property. 
 Paternity is shown in history when there is established 
 an individual control in the form of matrimony. That pa- 
 ternity is a derivation of the right of ownership is proved 
 by divers facts. One of these proofs is found in the an- 
 cient Aryan language. A father, in Sanscrit, is called a 
 "patar," owner, or "ganitor," creator. In the Vedas the 
 two terms are joined, forming "pitaganita." Such a 
 conjunction and later such a confusion of the conceptions 
 in the language are sure indications of the influence of 
 property rights in the development of the masculine 
 family. And here we must notice that a man can become 
 for a certain time a woman's master in two ways, by 
 right of conquest, or by bargain and sale. In a warlike 
 tribe, the captor of a woman of another tribe makes her 
 his own, like any other booty, by virtue of the capture. 
 And in this connection, we must note what Lubbock 
 says of the possibility of the coexistence of individual 
 marriages and community of wives. In other tribes, the 
 masculine family was brought about through bargain 
 and sale, because woman was considered part of the fam- 
 ily's property, and always remained part of the inherit- 
 able estate. The family sold a right of use but did not 
 sell the women. The husband, therefore, had to stay in 
 the cabin and village of his wife's family. In Sumatra, 
 the husband and his descendants became the absolute 
 property of his wife's family, if the marriage was cele- 
 brated in a form called "ambel-anak," now fallen into 
 disuse. Not very dissimilar customs existed among the 
 Kochs of India, in Ceylon, and ancient China. Clearly, 
 the difficulties in the way of getting a wife in the primitive 
 ages, when poverty was all supreme, were many. Often 
 the price of a wife was temporary slavery in the house 
 of the father-in-law, such as Jacob spent in the house of 
 Laban, and as it still is in Asia, Africa, and the two Amer-
 
 656 THE PRIMITIVE FAMILY 
 
 icas. In some tribes of American Indians, the husband 
 is forced to move into his father-in-law's house, but can 
 have his own, if he pays a tribute from the hunt until a 
 daughter is born. This child, who becomes the property 
 of his maternal uncle, completes the price due from her 
 mother. Among the Makololos, the southern Kimbundas, 
 and some races of the Gold Coast, at Timon and among 
 the Limbus of India, the price of the mother does not 
 include the children, who must be bought separately, 
 if the father wishes to keep them. Along all the coast of 
 Guinea, and among several African tribes, the law for- 
 bids the acquisition of a son by his father. His life and 
 liberty depend absolutely upon the caprice of his mater- 
 nal uncle. It can be easily seen that the masculine fam- 
 ily by right exists from the moment when the purchase 
 of the mother includes the children. According to the 
 ways and law of the Kimbundas, the Fellatahs, and of 
 the kingdom of Fanti, the only way in which a man can 
 possess his own wife or daughter is by union with a slave. 
 In such a case, he has true power over his wife and de- 
 scendants, and his personalty is not inherited by children 
 of a legitimate wife, but by the children of the slave, or 
 if she has none, by adopted children. The union of the 
 owner and his slave is a symptom of deep alteration in 
 the marriage states in several African peoples. There 
 is a marked tendency to such unions, as man wants to 
 rule and not to be ruled. For women of such races are 
 absolute masters of their husbands and their children 
 who received their name. They control all their husband's 
 acts. The unfortunate husbands have no means of oppos- 
 ing the conduct of their wives, who follow their own way, 
 and exercise an absolute supremacy. 
 
 438. Symbolic Recognition of Paternity. In the 
 primitive world abstract ideas cannot prevail because 
 the intellect, at the beginning, departs but little from
 
 DIFFERENT TYPES 657 
 
 the senses, and is bound to the particular. And so 
 when the notion of paternity had appeared, the general 
 presumption of the maxim, "Pater est is quem nuptiae 
 demonstrant," was not immediately applied. But there 
 was had recourse to a symbol peculiar to an uncivilized 
 and mute age; the father had to imitate the pains of 
 childbirth, thus making himself another mother. Strabo 
 states that this was the practice of the Iberians ; Apol- 
 lonius reports this custom among the savages living 
 around the Black Sea; Diodorus and Plutarch attribute 
 it to the islanders of Corsica and Cyprus; Marco Polo 
 found it in eastern Asia; and to-day, we find it still in 
 South America and on the west coast of Africa. In 
 lower Guinea and in some other places there is a ceremony 
 of the mixture of the blood by which an apparent con- 
 sanguinity is established and the paternity is recog- 
 nized. This ceremony consists in making a few drops 
 of the blood from the veins of one pass into the veins of 
 the other, by two slight incisions, and by drinking a drop 
 or so. This mixture of the blood is called "fatti 
 draha" in Madagascar. 
 
 439. Different Types of the Patriarchal Family. 
 The patriarchal type developed among the Semites in 
 the Hebrew family, among the Aryans, the associated 
 Indian family, in the Hellenic ytvos, in the Roman ag- 
 native family, in the Celtic, "sept," in the Teutonic and 
 Slavic, domestic community. Maine, in his "Lectures 
 on the Early History of Institutions," explains with 
 clearness and precision the formation of the Irish "sept" ; 
 and in his "Dissertations on Early Law and Custom," 
 he outlines the early domestic communities of eastern 
 Europe, availing himself of Bogisc's important discoveries. 
 The Irish family is divided into four classes, "geilfine," 
 "deirbhfine,""irafine"and "indfine," of which the young- 
 est, "geilfine," has five members; the others have twelve,
 
 658 THE PRIMITIVE FAMILY 
 
 four each. When there is a birth in the "geilfine," its oldest 
 member is advanced into the "deirbhfine," and so in each 
 class. The oldest member of the "indfine," however, goes 
 out of the organization, for declassification is allowed. 
 The word "geilfine" has the same meaning as the Latin 
 "manus," "familia"; "deirbhfine" means true family; 
 "irafine," subsequent family; and "indfine" means the 
 ultimate family. It seems that the principle of its con- 
 ception was that of the "patria potestas," because the 
 "geilfine" consists of the father and four children or 
 adopted children under his immediate authority, while 
 the other groups contain emancipated descendants, whose 
 dignity decreased with the distance from the true and 
 typical group. The Roman and this kind of family have 
 a common base in paternal authority, but there are many 
 notable differences ; for example, the institution of eman- 
 cipation is systematic in the Irish family, while in the 
 Roman it is entirely arbitrary. There is a similar Eng- 
 lish custom in which the youngest son, and not the 
 eldest, is the heir and stays with his father, never being 
 emancipated. All the other sons leave home emancipa- 
 ted, but the last remains and is dependent on his father 
 all his life. The domestic community of the southern 
 Slav is a union of natural families descended from a 
 common ancestor. These essentially patriarchal families 
 are governed by the oldest member; the relationship is 
 through the "grand sang," that is, is agnative, and not 
 through the "petit sang," or cognative. And the preva- 
 lence of agnation is the surest testimony of a masculine 
 form of descent. From one aspect, these communities 
 are democratic, because each member has the right to 
 be fed, clothed, and lodged by the corporation; he also 
 has a voice in the assembly or "skuptchina," held under 
 the presidency and direction of the older members. 
 From another aspect, it seems despotic, because the sum
 
 DEVELOPMENT 659 
 
 of everything is found in the hands of the head of the 
 house or "domacin," who may be the eldest son of the 
 deceased chief, or his brother, or even a woman of excep- 
 tional ability. The election is governed in part by 
 relationship, in part by the necessities of life. These 
 elections are found in the associated Indian family and 
 in the "sept." The capital in agriculture or enterprise of 
 the community is inalienable like the "res mancipi" of the 
 Romans, which formed the basis of the agrarian com- 
 munity of Latium. The "peculium," consisting at first 
 in some heads of cattle in a common pasture, works as the 
 dissolving force of the corporation using its influence 
 the same as among the Indians and the Romans. The 
 daughters had a right to marry and to have a dowry. 
 They enjoyed a certain liberty of choice and took as women 
 to the house which they entered what they could take of 
 the herd or personal property, which sometimes went 
 to the feminine heirs by a particular rule of inheritance. 
 Most extensive was the list of impediments to mar- 
 riage, which sprang from relationship and were shown 
 in many ways. There is the adoption of individuals of 
 the families and a curious series of conventional and 
 spiritual affinities. In the primitive world, the prejudice 
 was paramount that men not bound together by blood 
 relationship were either enemies or slaves. 
 
 440. Development of the Family. From all that 
 has been said two conceptions can be gotten; the most 
 immediate is that of the derivation of the patriarchal 
 group (that Maine still believes primitive) as the sys- 
 tem of paternal administration of the property in the 
 interest of the family. Spencer says, and with a 
 great deal of justice, that the existence of such a sys- 
 tem cannot be reconciled with the fact of the "jus 
 vitse ac necis" of the father in remote ages. It is 
 not conceivable that a savage, with his selfishness and
 
 660 THE PRIMITIVE FAMILY 
 
 without any idea of justice or sentiment of responsi- 
 bility, should administer the goods and chattels in the 
 interest of his family. And if in the patriarchal group 
 there are found many domestic animals, we must believe 
 that the group is not primitive, because the domestica- 
 tion must have taken time. The other conceptions 
 includes the law of the development of property, the 
 family rights over property and towards other men in 
 primitive times, which we have studied in other places. 
 At the beginning, there existed a communion of both 
 women and chattels. Relationship was a connection 
 between an individual and his group, which had all the 
 property rights. Then the communion began to be 
 restricted, and there appeared first the feminine family 
 and then the masculine, and property no longer belonged 
 to the community but was assigned to the home. There 
 was a true "dominium a domu." As time went on, the 
 individual was emancipated from the patriarchal power 
 and family and obtained that extended liberty which 
 he has, for example, in the American family. In that 
 country, the boys of fifteen or sixteen years of age choose 
 their careers with the greatest independence and pro- 
 ceed to effect their choice in the same manner; the girls 
 go out alone, travel alone, and freely choose their hus- 
 bands. The individual destroys trusts, family estates, 
 and many other limitations established in the interest 
 of the preservation of the family; and proclaims the 
 absoluteness of his property. The weakening of the 
 family bonds go hand in hand with absolute property. 
 
 441. Evolution Tends to Individualism. Evolution 
 is progressive individualization, a growing intimacy of 
 parts. Now relationship is essentially a product of 
 evolution because it began by being generic and little 
 by little became specific and reached distinction in 
 different degrees unknown to the primitive world; it
 
 INDIVIDUALISM 661 
 
 became more conscious and intimate, passing from a 
 state of homogeneity and incoherence to one of hetero- 
 geneity and coherence. The great connotation of primi- 
 tive relationship was entirely superficial. With the 
 appearance of the family, the relationship was mani- 
 fested in a smaller sphere but became richer in ramifica- 
 tion and degree. It became a real union. With the 
 flight of time, it acquired greater variety and intimacy. 
 It made qualitative progress, for promiscuous life is from 
 an ethical standpoint inferior to the matriarchal family, 
 and the latter in its turn to the patriarchal family, which 
 is founded in the last analysis on the double certainty 
 of the father and mother. Divers systems of relation- 
 ships succeeded one another in a struggle to reach the 
 most suitable. And the prevalence in history, now of 
 one, now of another, has always been the election of the 
 relative best. Promiscuity and even the matriarchal 
 family are not very favorable for the preservation and 
 development of society, since they lack strong domestic 
 unity, power to control, and respect for ancestry. The 
 children are entrusted entirely to the care of the mother 
 who is weak and not in a condition to be effectively able 
 to protect them. When the father reaches old age he is 
 without the help of children or wife. Polyandry has 
 the advantage of stopping an excessive increase of popu- 
 lation, but it cannot be of long duration because it always 
 lessens fecundity and lacks cohesive force, while lack of 
 subordination between the fathers renders the good edu- 
 cation of the children impossible, and harms society. 
 Polygamy (the result in some countries of the honor 
 derived from the possession of many wives and in others 
 from the advantage of having many slaves) is better than 
 polyandry. In polygamy, the bonds between the father 
 and his children are strong, and there is formed a line 
 of masculine ancestors, which favors the development
 
 662 THE PRIMITIVE FAMILY 
 
 of ancestor-worship and political stability by the trans- 
 mission of power in the same family. Polygamy dimin- 
 ishes infant mortality through maternal and paternal 
 care, and rapidly fills the places of men killed in war. 
 Its great evil lies in the continual discords between the 
 women and children. Monogamy is a necessity in these 
 regions, where the life demands a dispersion of the tribe 
 over a vast area. Monogamy depends upon the phases 
 of the conception of property, the numerical equality 
 of the two sexes, and the experience of the benefits 
 which it brings. In truth, it determines fully the rela- 
 tions between the parents and children and relatives in 
 every line. It produces peace and cohesion. It per- 
 fects the support, improves the education, and is more 
 fecund in most cases than polygamy, except where the 
 men are much fewer than the women. Spencer shows 
 the connection of polygamy with the military communi- 
 ties, and of monogamy with industrial communities. In 
 the first, war is the rule, captures frequent, the number of 
 women excessive through death in the tribal wars, and 
 great the reputation of bravery derived from the posses- 
 sion of many women captured from the enemy, and the 
 despotic character of the warrior is prevalent; in the 
 second, the principle of freedom and voluntary coopera- 
 tion predominates. As militarism declines, and indus- 
 trialism expands, the number of the two sexes approaches 
 equality, and monogamy generally becomes the rule. The 
 despotic power of the father ceases, and the life of the 
 children becomes sacred and develops towards freedom. 
 
 442. The Origin of Relationship in Love. Relation- 
 ship, whatever its form, has its origin in love, which 
 is also subject to the laws of evolution. Love has 
 its stages, progress, and history. It began by includ- 
 ing many individuals without being deep. In that 
 phase it was vague and external, but it gained strength
 
 RELATIONSHIP IN LOVE 663 
 
 and learned the use of its wings. As it gained strength, 
 and was restricted, it became more concrete and real 
 by specialization. It tended to individualization and 
 then became individual and could not brook company. 
 Love has grown richer. It includes new points of view 
 of the loved object. As man develops, it becomes always 
 more various. Monogamy is the full individuality of 
 love. It is the last selection of human love. The love, 
 shown in polygamy and polyandry, in which a man does 
 not give himself entirely to a woman and a woman does 
 not abandon herself entirely to a man, has not attained 
 full self-realization. Free love and that which is not 
 foreign to a fidelity which is content with several loved 
 objects are primitive facts. Has the family yet reached 
 its final limit of specification? Some think this possible, 
 alleging as proof the antagonism of the family to society, 
 which can be observed among animals and the human 
 race. Experience, they say, shows that where the 
 social instinct is most developed and alive, the family 
 is always a unity less strong and less lasting, and that 
 where the sentiment of the family includes all the activ- 
 ity of its components, society suffers thereby and becomes 
 weakened. They add that it is not right to state the de- 
 rivation of society on the family, because sexual love is 
 of itself selfish and exclusive, and because there are asso- 
 ciations of animals which are in no sense families, not 
 making for procreation. Political society is not a de- 
 velopment of the family because one is bound by reason 
 and the other not, because one is based on reward accord- 
 ing to merit and the other on the principle of assistance 
 of the weak, who are not able to provide for their needs. 
 It seems to us that the growing individualization and 
 intimacy in the system of relationship cannot bring 
 about the destruction of the family. These factors 
 only mean that relationship, little by little, will be
 
 664 THE PRIMITIVE FAMILY 
 
 concentrated within natural limits, and that the parts 
 of the ethical organism will have more freedom. The 
 restriction of relationship, the greater intensity of domes- 
 tic bonds, and the emancipation of the individual from 
 the despotic prevalence of the head of the family, are 
 not signs of the disappearance of the family nucleus. 
 The nucleus will remain, though more limited and 
 intimate. It will acquire a higher character, since it 
 will be founded on monogamic marriage. It will fully 
 recognize the freedom of its elements, but it will always 
 remain safe and sound. If such freedom becomes exces- 
 sive, it will have to be tempered and harmonized by the 
 principle of authority, so that the nucleus may be saved. 
 An ethical organism, which is becoming more typical and 
 which conforms to the laws of reason, is not destined 
 to disappear, but tends to persevere in its existence, to 
 take on such higher coordinations as nature and reason 
 dictate. In mankind, society and family are in no wise 
 antagonistic, because primitive society was created 
 through relationship broadly construed, that is, not only 
 on natural and blood relationship but on civil and ficti- 
 tious relationship. The members of the first civil and 
 political communities were bound together by ties of 
 blood either real or fanciful. It is only recently that the 
 fact of the common habitation or life became the base 
 of the city or State. The religious and warlike fraterni- 
 ties of remote times all assumed a family character. 
 A primitive society can always be regarded as an ampli- 
 fied family. Now the social sentiment among men is 
 born from the family centre, but it cannot on the other 
 hand deny that the latter, with the progress of time, can 
 become distinct and have its own development dependent 
 upon particular causes. 
 
 443. Society and Family are Distinct. Society and 
 family have diverse functions but are not mutually ex-
 
 SOCIETY AND FAMILY 665 
 
 elusive; they are rather complementary. Society is a 
 community of civil interest and becomes a political 
 union ; the family is a community based on domestic 
 affection and piety. One is larger and higher than the 
 other and includes it from various points of view, either 
 by reinforcing the individual activities with reciprocal 
 exchange of services or by organizing the ethical whole 
 in its single elements. The family without civil society 
 or the State is an incomplete and rudimentary nucleus; 
 the State cannot be imagined without the family, be- 
 cause it originated in the latter. The idea of the human 
 community develops in various ways, depending upon 
 whether affections approximate interests or whether in- 
 terests are dignified into reason. Affection, interest, 
 and reason form the three bases of the human union 
 and determine its form. With the single principle, by 
 which the family is governed, society would be badly 
 organized and would dissolve, because help would be 
 extended to those cases in which it would be unjust and 
 dangerous, strengthening, increasing, and aggravating 
 through love the evil derived from individual weak- 
 nesses. With the single principle on which society is 
 governed, that is, on reward according to merit, there 
 would be wanting the assiduous care for that portion 
 of the human race which, without its fault, is incapable 
 of providing for its needs. Society would not fulfill its 
 duty and would not attain its object. The family will 
 live as long as the individual and as long as the senti- 
 ments and conceptions which are referable to care or 
 ownership. Family and society are terms which work 
 together and presuppose one another. And in the hu- 
 man species they advance side by side because the per- 
 fection of the family exercises an influence on the moral 
 development of civil society and the State. And good 
 civil and political government cannot fail to bring great
 
 666 THE PRIMITIVE FAMILY 
 
 advantages to the life of the family. In other words, 
 the greater ethical elevation that the family attains, 
 the more will civilization and politics be raised; and 
 as civilization and the State approach their true 
 end, the family will profit thereby. But this does not 
 prevent the two objects being distinct and sometimes 
 opposite. In fact, sometimes society absorbs the family 
 and sometimes the family absorbs society.
 
 FAMILY RELATIONSHIPS 667 
 
 CHAPTER XVIII 
 
 THE CONJUGAL RELATION 
 
 LOVE AS THE FOUNDATION OF MATRIMONY. THE IDEA OF 
 MATRIMONY. CONDITIONS. CIVIL MATRIMONY. THE PRE- 
 CEDENCE OF THE CIVIL CEREMONY. RELATION BETWEEN 
 THE PARTIES. MARITAL AUTHORITY. REBEL'S BOOK. AND 
 THE IDEA OF SPENCER. THE SYSTEM BY WHICH PROPERTY 
 IS REGULATED IN MATRIMONY. 
 
 444. Family is Divided into the Paternal and Conju- 
 gal Relations. The family is composed of two relations 
 intimately bound together, one of which germinates in 
 the other. These relations are the conjugal and the 
 parental. The conjugal relation is the object of matri- 
 monial law, the other of domestic law. According to 
 Aristotle, every society and ethical organization arises 
 and is preserved by a bond, by common affection, and 
 by the friendship of the two parties. Love, the foun- 
 dation of matrimony, is a friendship suggested by 
 nature and accompanied by cupidity. It is taught us 
 by considering someone as a cause of one's own happi- 
 ness, by feeling the desire of living and reliving in others. 
 This same conception is shadowed in the fable of the 
 division into the two parts of primitive and hermaphro- 
 dite man, a kind of robust and strong composite of both 
 sexes, and of the fancied meeting of two opposites, 
 wearied by the fear of the gods, who of their own will 
 come together and make one, as you can read in the 
 "Symposium." Through generation, love can be said to 
 be the attempt of the mortal to be immortal, as Socrates
 
 668 THE CONJUGAL RELATION 
 
 says in the same Dialogue. Love, the cause of matri- 
 mony, is not the winged child of the myth, otherwise 
 the conjugal union would be fleeting; neither is it the 
 impulse to the production of the beautiful in a beautiful 
 mind and body, as Plato believed, because this would 
 deprive it of the natural tendency to generation, and 
 furthermore, in this case, it could exist between individ- 
 uals of the same sex. Love is rather the inclination of 
 the senses, an affection, a desire untrammelled by 
 reason. This fleeting appetite is raised to an enduring 
 sentiment, to a constant will becoming a duty, and 
 existing in fidelity and mutual sacrifice. Here, as else- 
 where, it is the mind which makes the elements of the 
 senses necessary and keeps them true. Plato did not 
 thoroughly understand the nature of love on another 
 score, for he allows polygamy, while true and living 
 love is a feeling which will not brook it. Aristotle, 
 on the other hand, had a true conception of love, 
 calling matrimony the union exclusive, lasting, and 
 divine, which results from the interpenetration of the 
 two opposite characters of man and woman. Such a 
 conception was common to the minds of the Roman 
 jurisconsults, who defined matrimony as "conjunctio 
 maris et fceminae, consortium omnis vitae, divini et 
 humani juris communicatio," and as "conjunctio viri 
 et mulieris individuam vitse consuetutinen continens." 
 Hegel is right when he says that Kant presents matri- 
 mony in its shamelessness, in his definition of it as a 
 bond of the persons of different sex for the interchange 
 and constant possession of mere sexual pleasures. 
 
 445. Marriage is a Union. Rosmini has written 
 strongly on the subject. Inner man, he says, is one 
 and identical ; thus there arises in him a continual 
 tendency to reduce plurality to unity. Hence, as plu- 
 rality reduced to unity in an object pleases the mind
 
 UNION MUST BE SPIRITUAL 669 
 
 which contemplates it, in whose eyes it is beautiful, 
 so plurality reduced to unity in sentiment is pleasant 
 to the sentiments and is called eudemonistic well-being 
 Beauty in plurality becomes unity in the ideal world. 
 Rosmini's idea of beauty, which has its source in Leib- 
 nitz's doctrine, may not satisfy everybody, because it is 
 formal. Yet even in consciousness and knowledge there 
 is the same reduction of the various to identity that is 
 observable in beauty. The specific difference between 
 truth and beauty lies in the aesthetic sense, in the imagi- 
 nation which clothes conceptions in more suitable sen- 
 sible forms. The unification, our philosopher goes on, 
 which makes a man and his possessions one, produces 
 the fact of property; the unification of individuals pro- 
 duces the fact of society, and the conjugal relation above 
 all others. Matrimony, it must be remembered, is the 
 union not of things, but of human beings; it is the full 
 and perfect na'tural union of two individuals of different 
 sex. From this it follows that the two sentiments of the 
 husband and wife should on every score be so responsive 
 as to find the complement of each in the other. The spir- 
 itual element should respond to the spiritual, the physi- 
 cal to the physical, so that the man and the woman are 
 bound together by a three-strand rope of soul, mind, 
 and body. In the sentence, "erunt tuo in carne una," 
 the first phrase, "erunt tuo," expresses this individuality 
 and the impossibility of the fusion of two personalities ; 
 the other, "in carne una," expresses the unity of life. 
 And now it must be remembered that the union of the 
 sexes is a vital, not a mere phyiscal union, though in the 
 physical act the two fundamental sentiments of the indi- 
 viduals seem to become one. 
 
 446. The Union must be Spiritual, Mental, and Phy- 
 sical. There is a true union of man and woman only 
 when the spiritual and mental bond precedes the physi-
 
 670 THE CONJUGAL RELATION 
 
 cal, which is only the complement or completion of the 
 former. When one human being joins himself to another, 
 he should join fully with all that makes the man. For 
 every union, to be fixed and stable, should begin at the 
 apex of human nature and thereafter descend to the 
 other elements, if those who unite do not want to sub- 
 ject reason to desire. From this can be seen the reason 
 for the illegality of concubinage ; the law cannot recog- 
 nize it, because it lacks an ethical basis. An immoral 
 marriage law is based on the right of might ; it is based 
 on the strength of man and is the legal dishonor of woman. 
 From what has been said, it is clear that matrimony has 
 a primary object full personal union, and a secondary 
 object generation. The personal union is the primary 
 object because there can be no matrimony without it ; and 
 generation is only secondary, because the matrimony 
 exists despite the sterility of the union. Generation was 
 the chief object in the days of the Old Testament, when 
 sterile unions were dissolved; in the time of the New 
 Testament the personal union has become the main and 
 primary purpose. 
 
 447. Conditions and Impediments to Marriage. 
 From these attributes of matrimony its conditions and 
 impediments are deducible. The first condition clearly 
 is an age necessary for the "conjunctio maris et fceminse" 
 and for the "consortium omnis vitae." There must be 
 physical capacity and moral maturity for a marriage; 
 the law should do all in its power to hinder marriages of 
 precocious appetites or of folly. The second condition is 
 bound up with the first; it is the necessity of parental 
 consent until the children have reached an age in which 
 a full discernment of the facts and relations of life can 
 be presumed. But to avoid an arbitrary prohibition on 
 the part of the parents, an appeal to the courts is allowed. 
 A law requiring the consent of the State for the mar-
 
 MARRIAGE BETWEEN RELATIVES 671 
 
 riage of persons of certain classes, for example, of mem- 
 bers of the wage-earning or proletarian classes, is a viola- 
 tion of the most sacred individual rights, that is, the 
 right to find one's own fulfillment in others with 
 absolute freedom of choice. Legislation requiring 
 such consent in order to reduce the excess of popula- 
 tion, following the old pagan theory of political 
 thought, markedly increases the number of illegiti- 
 mate births. The objection of the infringement of 
 personal liberty cannot be applied to the requirement 
 of a certificate for the marriage of those engaged in 
 military pursuits for discipline and the general good of 
 the service. 
 
 448. Marriage between Relatives. The third con- 
 dition is the degree of consanguinity. The judgment 
 of mankind is opposed, says Rosmini, to marriage 
 between lineals, because in the progress which nature 
 has assigned to sexual love, the child is the result of 
 the activity which has ceased to exist, having devel- 
 oped and been satisfied. This progress shows that it 
 would be unnatural for sexual love to begin when nature 
 has decreed it to end, that is, in the descendant. As to 
 collaterals, if human instinct was considered in its per- 
 fection, it is evident that it would force men to marry 
 where there was no consanguinity, or else where the 
 common stock was so distant as to have been lost to 
 memory. The reason of this is that where the common 
 ancestor is known and remembered, he seems to be re- 
 produced in the children or with this paternal image in 
 the mind, it seems as if the marriage was contracted with 
 him in marrying a brother, in whom, in every man's 
 mind, is the father made young once more. If the nature 
 of matrimony is considered, which unites the individuals, 
 it can be seen that the cognates of one cousin are the 
 agnates of the other; hence, the same rule for them.
 
 672 THE CONJUGAL RELATION 
 
 449. Adoption and Marriage. In adoption, the 
 adoptor has the feelings of a parent, and assumes his 
 duties; the adopted should consider himself as a son. 
 What has already been said concerning the impediments 
 of lineal relatives should be applied to this knot of legal 
 relationship. In general, the intrinsic motives for the 
 prohibition of intermarriage, besides those already given 
 (that marriage is ideally the union of diverse, not 
 similar elements), can be roughly reduced to two: 
 to the protection of family morals, and to the dangers 
 arising from the marriage of relatives, whose descen- 
 dants are often weak, sickly, with a disposition towards 
 insanity, and frequently deaf and dumb. These unions 
 result in the inheritance of such diseases, as long and 
 constant experience shows. The prohibition is not ab- 
 solute, allowing for exception where the relationship is 
 slight, or where there are potent reasons of domestic 
 necessity. So among collaterals, while the marriage of 
 brothers and sisters is always forbidden, yet sometimes 
 it is permitted between relatives of the same degree, 
 between uncle and niece, or nephew and aunt. It is 
 necessary, in such cases, to take account of all positive 
 and relative factors in the family. 
 
 450. The Impediment of Attempted Murder. The 
 fourth condition refers to an attempt upon the life of 
 the consort of the person, whom the criminal desires to 
 marry. Such an attempt is an impediment, since 
 matrimony cannot be the reward for a crime. The 
 fifth is the disregard to solemn formalities, prescribed 
 under penalty of nullity, which serve to give certain- 
 ty and publicity to matrimony. 
 
 451. Annulment of Marriage. It is easy to under- 
 stand that impediments are caused by the failure to 
 observe the above conditions. These impediments 
 annul the marriage, making it void or voidable. The
 
 BETROTHALS 673 
 
 impediments which produce absolute nullity, that 
 is, those which can be invoked by anyone who 
 has an interest, are, for example, that the contract- 
 ing parties are not of age, or that one of them has 
 entered into a prior marriage. The impediments which 
 produce relative nullity, that is, those which can be 
 invoked by certain persons, are lack of consent or im- 
 potency. A person without the power of sexual inter- 
 course cannot enter matrimony, because a specific 
 object of marriage is lacking. This impotency must be 
 manifest, that is, such as can be known and recognized 
 by a doctor; it must be incurable and not transitory, 
 anterior to the wedding, and then existing. Some im- 
 pediments are temporary, and have nothing to do with 
 the essential requisites of marriage. They prevent the 
 marriage being fully legitimate, but allow it to be 
 sustained. Of this kind is the prohibition against a 
 widow's marriage within ten months of the death of 
 her husband. The theory of these impediments is the 
 same as that of the conditions required for a marriage, 
 and have to do with the philosophy of the law as well 
 as with positive law. 
 
 452. Betrothals. The custom of a betrothal has, 
 Trendelenberg says, a good basis; because the engage- 
 ment serves not only as a preparation for the marriage, 
 but also tends to implant in the couple (who begin 
 forthwith a more intimate life) true will in place of 
 wavering faith, and also because in this way it is 
 possible to test their desire to marry, which should be 
 neither a romantic sentiment nor an unfeeling calcu- 
 lation. And yet the betrothal, though well sanctioned 
 by use and by the weight of tradition, cannot, in case of 
 breach, have any other legal result than indemnification 
 for the injury caused. If it had greater legal force and 
 could compel the marriage, it would defeat its own pur-
 
 674 THE CONJUGAL RELATION 
 
 pose, which is to put a certain time between the date 
 of the promise and the marriage in order to test the 
 character and vocation of the couple for a more intimate 
 life. 
 
 453. Marriage is Ethical, Religious, and Juridical. 
 Marriage is an ethical, religious, and legal institution. 
 Marriage laws have been the subject of a long and bitter 
 struggle between the Church and State. The former 
 considered the sacrament as the essence of a conjugal 
 union, and therefore claimed the right to regulate it 
 with its canons and in its courts. The Council of 
 Trent made the triune proclamation of marriage before 
 the Church; it imposed upon the couple the duty 
 of declaring their intentions before a parish priest, and 
 of receiving his benediction. Following St. Thomas, it 
 was admitted that the rite of the sacrament was to be 
 given upon the desire of the couple, while the solemnity 
 comes from the sacerdotal benediction. Civil govern- 
 ments began to take up the right to enact marriage 
 laws at the time of the Reformation. Civil marriage 
 first appeared in England under the laws of Cromwell, 
 who gave justices of the peace authority to celebrate 
 marriages, and jurisdiction over them, a law defended 
 by Milton, but doomed to fall with the other republi- 
 can institutions. In the Catholic countries canon law 
 controlled, but was enforced by the State. Some royal 
 orders in France and in the Kingdom of Naples began 
 the vindication of the State's jurisdiction. In France 
 civil marriage was permitted to the Protestants by the 
 laws of Louis XVI. The Revolution, by means of 
 the Constitution of 1791, and the Legislative Assembly 
 of 1792, treated marriage as any other contract, and 
 prescribed a civil form, obligatory upon all citizens. 
 To the Code belongs the credit of having restored 
 to marriage its high ethical character, taken away by
 
 STATE CONTROL OF MARRIAGE 675 
 
 the laws of 1791 and 1792. The Code allowed imped- 
 iments upon the basis of its ethical character, reaffirmed 
 the jurisdiction of the civil courts and the right of 
 the State to pass marriage laws ; it prohibited the cele- 
 bration of the religious ceremony before the civil. The 
 French Code was introduced into Italy, but, upon the 
 Restoration, the ancient state of the law was brought 
 back in nearly all its forms. The Italian Code pre- 
 scribes for the civil marriage, but allows it to be 
 celebrated before or after the religious ceremony. 
 454. State Control of Marriage. The State is not 
 an atheistic but a lay power. It has no authority in 
 religious matters, and therefore cannot look upon mar- 
 riage except as a civil contract, sui generis, recognizing, 
 however, that the complete union is a divine bond. 
 The incompetence of the State is not due to ignor- 
 ance of religion or the Church, nor indifference to those 
 high human interests so vital and powerful. In the State 
 there is contained and developed the same human nature 
 on which religion is based ; but the State considers human 
 nature only from the juristic point of view. It should 
 prevent the clergy inspiring the multitude to rebellion or 
 fanaticism, but at the same time, it should not encourage 
 the development of atheism. The State, therefore, can- 
 not discredit the religious ceremony, but can add the 
 legal duty of a civil ceremony as an essential necessity. 
 To look upon marriage as a civil contract does not mean 
 to lower it to the condition of a bargain and sale partner- 
 ship or ordinary contract, in which there is great useful- 
 ness, or an exchange of value, but it connotes the recog- 
 nition of the perfect union of two persons of different sex. 
 Marriage, looked upon as a civil contract, has a distinct 
 and particular nature in its meaning and its end, and is 
 essentially different from all other contracts. The State, 
 in the case of marriages, not only exercises its functions
 
 676 THE CONJUGAL RELATION 
 
 of guaranty, but intervenes as an ethical power, an organ 
 of natural law, and realizes the conception of matrimony, 
 determines its conditions, taking account of the various 
 historical needs of the people. Consequently it cannot 
 as Trendelenburg would wish, give over without abdica- 
 tion to the Church the contract of marriages, nor can 
 the institution of civil marriage be considered as a return 
 of the days of the struggle with the Church, as the same 
 philosopher adds. Civil marriage is not a backward step 
 of any kind, but is the marriage of natural law, in which 
 the State is an effectual factor in social relations, without 
 passing the confine of its authority. For the same reason 
 we must not be misled by Rosmini, who teaches that 
 the laws should follow the religious forms allowed by the 
 State, as in the case of freedom of conscience. If the State 
 did this, it would not have its own forms of marriage, 
 but would be forced to regulate it in many different 
 and various ways. For the same reason, permissive 
 civil marriage cannot be recognized where an election 
 is given between the religious and civil ceremonies; 
 and if the former is chosen, the Church celebra- 
 tion must be registered in the books provided by the 
 State for the purpose. Upon the same theory is based 
 the legality of punishing the contracting parties and the 
 priest who performs the religious ceremony before the civil . 
 In such an act are found the common elements of fraud 
 and injury. Clearly, the religious marriage, examined by 
 itself, is not a fraudulent act, but it becomes such when it 
 entails the breaking the laws of the State, the denial of 
 the conjugal relation and of the rights of children, both 
 undermining the moral sense of the community and in- 
 flicting the greatest harm upon the two families. Reli- 
 gious marriage is the effectuation of true matrimony in 
 one of its branches, and is not a kind of concubinage in 
 which the sexual passions are appeased, but in which no
 
 STATE CONTROL OF MARRIAGE 677 
 
 sacred or profane bonds are entered, and no duty towards 
 the public taken. Gabbi, in "I Due Matrimonii," has 
 said that those who are married by the Church desire 
 a form of moral union without conjugal or domestic bur- 
 dens, letting the future look out for itself ; many therefore 
 disregard the civil marriage, and a moral degeneration of 
 society results. The institution of marriage is here broken 
 by both families, and is broken also by the priest who 
 blesses such a union contrary to the law of the State. 
 The parties being the chief actors deserve the greater 
 punishment. There is here no reason for appealing to 
 the theory of the separation of Church and State, because 
 the latter's rights or prerogatives are injured by such 
 an act. The clericals can be interested in opposing civil 
 marriages, but not in opposing the prohibition of cele- 
 brating it before the religious ceremony. Neither can 
 the principle of civil liberty be invoked, for it has not 
 been infringed, since the religious marriage has in no wise 
 been made into concubinage. The prohibition in ques- 
 tion eliminates an easy method of masculine egotism and 
 power, and conforms to the prudence of those who want 
 both ceremonies, because one of the parties might die 
 after the religious, and before the civil marriage. In 
 this case, the other would be left in an equivocal, unde- 
 fined and injurious position. But marriages in extremis 
 seem a reasonable exception to the rule, for they tran- 
 quilize the conscience of a dying man and for this reason 
 should entail no punishment either for the parties or 
 the priest. The parties, if the one who was dying recovers, 
 must be penalized unless they have a civil ceremony per- 
 formed within a certain time. The priest, of course, be- 
 ing free from blame, should not be punished even if the 
 parties refuse to have the second marriage. The State, 
 besides enacting this prohibition, should take part in 
 stopping the abolition of the rights of widowhood,
 
 678 THE CONJUGAL RELATION 
 
 which are brought about either by action of law or by will. 
 The conditio viduitatis presupposes that the deceased 
 wished his survivor to keep inviolate the conjugal faith. 
 With the entrance into a religious marriage by the sur- 
 vivor, such faith is destroyed. The law cannot act in the 
 case of an illegal ceremony, for the deceased has trusted to 
 the honor of the survivor, and we must adopt a phrase 
 of the law of contracts, that the law cannot enter the 
 sphere of personal judgments and valuations. 
 
 455. The Equality of the Sexes. There are many 
 different relations between husband and wife, a great 
 number of which lie within the sphere of custom, and 
 are not subject to legal enforcement. The law recog- 
 nizes only those which it can enforce, such obliga- 
 tions, that is, as those of cohabitation, faithfulness, 
 and support. Certainly a family must have a head 
 to avoid inaction and anarchy, and the head should 
 be appointed by law, in accordance with the dictates of 
 nature. It is of little profit in discussing if the parents 
 or children should be the head, entrusted, as it is, with 
 the power of controlling the domestic fate. But should 
 the law give the decision to the husband and father? Is 
 it reasonable that the husband must join the wife in 
 many of her important acts, such as the alienation of 
 realty, in making a loan, or gift? Plato believed in the 
 identical nature of man and woman and a congenital 
 diversity of functions, but this idea had not been fully 
 recognized by all the presuppositions of political 
 thought. Aristotle, in his turn, declared with great 
 precision the natural difference of the sexes, and looked 
 upon it as one with the unity of divine determination. 
 He pointed out that in the conjugal cooperative society 
 the man is stronger and better suited for the acquisi- 
 tion and defense of property than his wife, while she 
 is calm, cautious, domestic, prudent, imploring help and
 
 EQUALITY OF THE SEXES 679 
 
 aid against injustice, particularly that arising from exter- 
 nal relations. If Plato accentuated the identity of the 
 sexes and did not see the difference between them, Aris- 
 totle erred on the other side. Xenophon and Plutarch, 
 however, kept the balance between these facts, which they 
 developed in a practical manner in lectures and argu- 
 ments. Xenophon said that God destined man and 
 woman to freedom in the social community, adding, 
 however, that woman tends to domesticity, and man 
 to the affairs of the world. Plutarch, while recognizing 
 that in the initiative, in poetry, and morals, women have 
 equalled men in merit, did not wish to praise women 
 for any similarity to men, or men for any similarity 
 to women. Among the Romans, the identity of the 
 natures of the sexes and their equality of rights were 
 the base of the Roman theories and institutions in 
 historical times. Cicero was opposed to the Voconian 
 Law that excluded women from the greater part of the 
 inheritance. Seneca believed that the duty of fidelity 
 was as binding upon a man as a woman, on the grounds 
 of the equality of the sexes. Yet the Romans were 
 opposed to a woman's mixing in politics, and wanted her 
 to be the housewife. Christianity proclaimed the prin- 
 ciple of the unity in nature of man and woman, in 
 teaching that God made woman out of Adam, and gave 
 them the same name, though at the same time it admitted 
 the control of the man, as is shown by the above fact 
 and by the sentence: "Vir caput est uxoris, mulier 
 autum gloria viri est." St. Augustine, like Cicero, called 
 the Voconian Law unjust, and considered adultery as 
 grave a fault in the husband as in the wife. St. Jerome 
 writes: "Apud nos quod non licit foeminis, aeque non 
 licit viris, et eadum servitus pari conditione censatur." 
 456. Comparison of the Sexes. It has been said 
 with truth, that as to their body, man is superior in
 
 680 THE CONJUGAL RELATION 
 
 that he has more power, and woman in that she is more 
 delicately made. The heavier bones and muscles, the 
 great lung capacity, and the big brain will always make 
 man the conqueror in the struggles of life. Woman 
 is marked by a greater excitability of the nervous sys- 
 tem. Mentally, we must agree with Beneke that in 
 man thought has a greater and more intimate power, 
 auto-consciousness is more developed, reflection more 
 sustained, firmness, coherence, and seriousness are better 
 marked, and the mental functions more complex and 
 difficult. In woman, on the contrary, sentiment pre- 
 dominates over thought, involving memory and imagin- 
 ation; in her, too, ideas of the outside world, and of life 
 among her fellows predominate ; she is less self-analyti- 
 cal, and has less abstract virtue. Her intuitions about 
 things of moment are finer, but because of sudden re- 
 actions lead to unhappiness and distress. In her you 
 find greater adaptability, delicacy, timidity, docility, and 
 sacrifice. In woman, too, are found greater sudden 
 bursts of passion ; and love is longer and more calculat- 
 ing. Man's mind easily masters general ideas, while 
 woman's does so with the greatest difficulty, always by 
 way of her heart; man enjoys creative faculties and 
 reaches the heights of genius. Woman feels more than 
 she analyzes truth, and individualizes everything. In 
 history we find that she pays more attention to single 
 characters than to general causes. In deeds of benevo- 
 lence she tends more to charity, which alleviates particu- 
 lar cases of suffering, than to philanthropy, which takes 
 forethought against the suffering of mankind. In busi- 
 ness a man risks more than a woman and gains more, 
 while a woman saves more and is a better manager. 
 
 457. Inequality of the Sexes. Stuart Mill, the 
 modern writer most renowned in sustaining the above 
 theory of the emancipation of woman, disagreeing with
 
 INEQUALITY OF THE SEXES 681 
 
 Comte and Spencer, conceives the harmony of the 
 sexes as a result of the abstract identity of nature 
 and mere organic opposition. He thinks that the 
 original and important difference of organism can 
 be transformed, as experience shows in psychological 
 determination; that the difference between man and 
 woman can be reduced to organic contrast. If there 
 was but a single tone, true harmony would be lacking, 
 because the effectiveness increases with the greater 
 variety of elements. Stuart Mill believes that the cause 
 of the psychic differences between the sexes is education. 
 But education in this case would not be natural develop- 
 ment aided by art ; it would be rather a foreign importa- 
 tion contrary to nature, a contradictory mark in the 
 feminine mind presupposing a clean slate at the start, 
 a mark that has been made throughout centuries. The 
 power of education should not be exaggerated when it 
 extends beyond the confines of nature. Huxley says 
 on this subject that the ancient Salic law of nature will 
 never be abrogated nor will there be changes of dynasty. 
 And although he is the closest follower of Darwin, he 
 adds that he would not dare to state seriously that a 
 different system of education would ever be successful 
 in removing the physical obstacles by which woman is 
 always made weaker than man in the struggles of life. 
 Spencer further affirms that in the progress of civiliza- 
 tion the masculine and feminine characters modify in 
 adaptation to higher social demands, and in the woman 
 particularly certain mental and moral qualities, taught 
 by necessity for protection against the greater strength of 
 man in barbarous times, disappear; but the habits and 
 original activities of the two sexes do not disappear. 
 Furthermore, Mill is wrong in likening the form of the 
 family community to that of a trading company, in which 
 the control is entrusted to the more expert and is not
 
 682 THE CONJUGAL RELATION 
 
 determined by law ; because the family is a society formed 
 of unequal persons and has an ethical existence higher 
 than that of mere association for exchange, including the 
 relations between husband and wife and between chil- 
 dren and parents relations which have to do with the 
 most intimate fact of human existence. 
 
 458. The Husband Must Have the Authority. 
 From this analysis it can be seen that the institution 
 of marital authority is not repugnant to the principles 
 of reason if organized in a way to forbid the presuppo- 
 sition of feminine incapacity, rendering thus marital 
 caprice more difficult. The modern foundation of this 
 institution is the idea of the unity of the family ; the free- 
 dom of the woman is limited not because she is woman 
 but because she is wife. Though between the two 
 sexes there should be an equality of civil rights, in the 
 family rules of harmony and preservation should not 
 be lacking. Unity is obtained by giving the husband 
 the predominating vote, because he possesses the strength 
 and therefore must be the head or treasurer, and 
 because he has the broader, deeper, and more concen- 
 trated mind. The general control of the family, there- 
 fore, belongs to the man; to the woman, gifted with a mind 
 more capable of grasping particulars, belongs the care 
 of the house, which, accepted as a duty and not as a 
 burden, is a vast field where kindness, taste, the virtue 
 of saving, and domestic piety form a beautiful whole. 
 A husband should protect his wife, and the protection 
 would be useless if it could not prevent her wasting the 
 estate. The authority of the judge, whose protecting 
 intervention is necessary, especially when it is a ques- 
 tion of a business in which the husband has a particular 
 interest, controls the unreasonable disagreement of the 
 husband. It has been observed that if this intervention 
 is removed on the pretext of emancipating the wife,
 
 EQUALITY OF THE SEXES 683 
 
 she is made a slave to the caprices of a stingy or specu- 
 lating husband. The wife generally wants peace in the 
 house even at the cost of the sacrifice of her money, and 
 therefore consents to its waste. In ancient times the 
 marital authority was practically the result of the 
 domestic power, of the conviction of the inferiority of 
 the woman, and of the right of self-defense in Germanic 
 law. In India and Rome the woman was not allowed the 
 "patria potestas,"andwas subjectto a life-long guardian- 
 ship. In Attic law the power that a husband, father, 
 and grandfather exercised over a woman had a char- 
 acter of defense very similar to that of the "mundium" 
 among the Germans. The "manus" and the "patria 
 potestas" of the Romans were, on the other hand, part of 
 the "dominium," of which they seem to have been forms. 
 With time the "manus" weakened, especially in the Anto- 
 nine epoch, and the tendency to the legal equality of the 
 two sexes began to prevail. Canon law could not 
 forget that woman was made of the rib of a man and did 
 not favor the Roman tendency. On the other hand, there 
 was the "mundium" of barbaric law exercised at first by 
 the relatives of the wife and then by her husband. A 
 transition period sprang up in which an unmarried woman 
 was subject to the Roman law and was considered as 
 the free owner of her own possessions, while to the wife 
 the canon and barbaric law was applied. Marital 
 authority originated thus, but in the fullness of time it 
 did not fail to change its significance and to adopt the 
 humanity of the Romans. Criscuolo, in his monograph 
 "La Condizione della Donna nel Diritto Italiano," 
 states with great clearness the different phases of marital 
 power. 
 
 459. Socialistic Equality of the Sexes. Bebel has 
 written a book entitled "Die Frau und der Socialmus," 
 with the evident purpose of finding a great aid to
 
 684 THE CONJUGAL RELATION 
 
 socialistic principles in women's interests and feel- 
 ings. Bebel, by a rapid examination of the condition 
 of women in various times and among various peoples, 
 in which he avails himself of the researches of Bachofen, 
 Morgan, McLennan, and of the work of Engels, "Die 
 Ursprung der Familie, des Privat-eigenthemus und des 
 Staats," tries to show that the oppression of woman, 
 like all social oppression, is a derivative of economic 
 dependence and individual ownership. Such depend- 
 ence did not exist in the primitive times of the right of 
 the order and of feminine relationship, but arose in the 
 epoch of the patriarchal family and the right of the father- 
 owner. The enslaving of woman, made stronger and 
 developed in ancient society, continued in the Middle 
 Ages favored by Christianity, with its preference for 
 celibacy and monasticism, and has been mitigated only 
 under the progressive civilization of Western countries. 
 In contemporaneous society woman finds no satisfac- 
 tion allowed her sexual instinct outside of indissoluble 
 and monogamic marriage, a distinct form of individual 
 ownership. Marriage, in the wealthy classes, is a busi- 
 ness and investment, a method for the production of 
 capital ; in the disinherited classes, it is a union to which 
 poverty accompanied by roughness and brutality is not 
 foreign. Even worse is the condition of the great 
 number of women condemned to remain unmarried be- 
 cause of the accumulation of property in the hands of a 
 few, militarism, and the quantitive disproportion of the 
 sexes. Only when woman is equal to man in every 
 respect and in her variety of opportunities will her cause 
 be brought to the front and put in a condition favorable 
 to development. The differences will disappear, placing 
 woman in the same position and conditions as man, 
 freeing her from the subjection in which she has been 
 kept for centuries. The statutes are only the social
 
 CRITICISM OF EQUALITY 685 
 
 state of a country, mirrored in a certain number of legal 
 decisions. The marital authority is an institution 
 founded on the "manus" and"mundium;" the prohibition 
 of the franchise is a survival of an old prejudice. Jus- 
 tice demands the perfect similarity of the two sexes as 
 to rights, because there is no natural difference. There 
 will come a time, says Bebel, when capitalism will be 
 routed and in its place collective property and equality 
 will reign. Then woman will be socially and eco- 
 nomically independent of man. Educated, like man, 
 she will be able to direct her efforts to what pleases her, 
 she will choose in matrimony the man of her heart or 
 will be chosen, and will be able with perfect freedom 
 to accept or refuse. Marriage will be perfectly free and 
 will be completed without the intervention of a magis- 
 trate, and will last only until the love which caused it 
 has 'disappeared. In this way humanity will return to 
 its starting place, reaching that happiness to which it 
 always aspires and which it does not and cannot find 
 in society as constructed at present. Marriage is evil, 
 since its constructive principle is private property. 
 
 460. Criticism of the Socialistic Equality of the Sexes. 
 Bebel falls into the same error as the other contem- 
 poraneous socialists, supposing that the whole social 
 evolution owes its origin to a single cause, the economic 
 factor, an error which we have criticized above. 1 Like 
 the other socialists, he does not understand the theory of 
 evolution because he does not realize the process of in- 
 creasing specification or individualization, and con- 
 fuses it with the artificial control of capital. Wherever 
 he sees the form of a human individuality, there he 
 recognizes a production of capital and private owner- 
 ship. Of course, private property is the result of the 
 principle of individual personality, but not every mani- 
 
 l Cf. 310 ante.
 
 686 THE CONJUGAL RELATION 
 
 festation of this principle is property. The individual 
 let us repeat it with Aristotle is shown not only by 
 possession but also by affection. It is beyond dispute 
 that the patriarchal family owes its origin to the right 
 of the father as owner. But it cannot be denied that 
 this right later became an ethical power of a character 
 entirely different from the domestic authority; a power 
 belonging to the father and mother founded upon the 
 duty of nourishment, education, and instruction of 
 their young. Monogamy has a base entirely different 
 from the right of private property because it is the 
 deepest demand of the love and intimacy of an absolute 
 union of man and woman. The patriarchal family 
 itself, though so closely connected with ownership, is a 
 product of the evolution of relationship which was first 
 generic, then depended upon the physical certainty of 
 the mother, and finally was based on the spiritual cer- 
 tainty of the father. These phases of relationship 
 comprehend economic causes accentuating in full the 
 periods of the development of ownership, but at the 
 same time they represent phases of human love. 
 The condition of woman before the patriarchal age 
 could not have been better than her later state, because 
 woman in the days of bestial lust and infamous com- 
 munion must have depended in whole or in good part 
 upon the components of the tribe. In matriarchal 
 families promiscuity was limited but not destroyed, and 
 woman could not have been protected from the violence 
 of the strong, although she was the centre of the family, 
 and apparently free. The revolution of women and 
 their consequent social supremacy, idealized by Bacho- 
 fen, cannot be considered as an event in history. A 
 matriarchy understood as a government organized by 
 women was not possible in primitive times, in which their 
 sense of shame and consciousness of self were not fully
 
 HYPOTHESIS OF THE SOCIALISTS 687 
 
 developed, and when strength was all dominant. Nor 
 is it true that Christianity was the greatest enemy of 
 the freedom of women, because it makes the conception 
 of her sublime. The ideal of the woman of antiquity 
 lay in childbearing, and in being a servant to the man, 
 in the education of the children until a certain age, in 
 acting as cook or handmaid, and in remaining in her 
 home. Christ, as Bonghi writes in "La Donna e 1'Av- 
 venire," discovered the spirit of woman and understood 
 the love which redeemed and saved her. The women 
 loved him, followed him, and touched his garments to 
 be made whole in body and soul. Christ forgave the 
 sins of the woman who bathed his feet with her tears, 
 because she had loved much. He refused to punish the 
 sinner, and cursed him who coveted woman as an instru- 
 ment of pleasure; he desired marriage to be the com- 
 plete union of soul and body. He denied man the 
 right of repudiation. He loved his mother tenderly. 
 He wrought his first miracle at a wedding banquet. He 
 liked little children to be about Him. He exalted 
 woman, because his father's wife and his mother was a 
 virgin. In this supernatural conception of the virgin 
 wife and mother lies the combination of the idealiza- 
 tion of the Christian woman. But, thus idealized, woman 
 could no longer be content with the Roman praise. 
 "She wove the wool, and kept her home." Her soul 
 was enflamed ; she turned Christian before man ; she felt 
 that Christ had done more for her than for him, since he 
 had raised her from the lowest degradation had done 
 more than her happiest dreams had pictured, or than 
 Greek or Latin mind or fancy has imagined. 
 
 461. Facts of the Socialists are Untrue. The des- 
 cription that Rebel gives of the actual state of women 
 has many false tints and is far from true; it not 
 being true that the greater part of the marriages
 
 688 THE CONJUGAL RELATION 
 
 among the wealthier class are due entirely to financial 
 calculations and that almost all the unions in the lower 
 classes are marked by poverty, roughness, and brutality. 
 It is undoubtedly true that selfishness and short-sighted- 
 ness are the rules of the human conduct but we must not 
 forget that the sentiments of sympathy and reason are 
 also active, and that they develop with the progress of 
 time. The relation between the sexes is not actually 
 whatitshould be. It is still far from perfect, butitcannot 
 be said that it is profoundly perverted or that it consti- 
 tutes a continual manifest and general negation of morals. 
 And would women return to their normal state if society 
 admitted that the sexual instinct could be legitimately 
 satisfied out of wedlock? Bebel lamented that society 
 furnished woman no means for the satisfaction of the 
 sexual instinct except in marriage, as if it could furnish 
 any other with the consent of the ethical essence of man. 
 Contemporaneous society admits woman to certain lucra- 
 tive employments, which can be especially enjoyed by 
 those who do not marry. In some countries the employ- 
 ment of the woman in public and private offices is greater, 
 in others, there is an effort to regulate it, with a regard 
 to the particular characteristics of woman, in order 
 not to destroy her real end, and to control competi- 
 tion with man. To-day woman has acquired civil equal- 
 ity, and it will not be long before she will in all cases be 
 capable of being guardian, trustee, of being one of the 
 family council, and arbitratrix. The legal equality of 
 woman even in respect to the obligations of conjugal 
 fidelity, is fiercely sought and will soon gain recognition. 
 The legal incapacities of the married woman, of which 
 we have written in this chapter, do not exist in all coun- 
 tries, and are strongly combated. The patria potestas is 
 given to the mother, who retains it after the dissolution 
 of the marriage. It cannot be said that woman, in a civil-
 
 FACTS OF THE SOCIALISTS 689 
 
 ized country, is very far from the day of her enfranchise- 
 ment, because the common opinion in all such States is 
 not absolutely opposed to it, apart from all theoretical 
 questions of the political rights. They enjoy public 
 rights ;forexample, that of petition, association, etc. Can, 
 by chance, this condition of women be called servitude? 
 Such condition may not be perfect, we may need to draw 
 all the logical consequences of the admitted principles of 
 civil equality, we may even need to recognize others be- 
 sides, but certainly we can no longer speak of the enslave- 
 ment of women. Bebel wishes absolute equality because 
 he starts out with the erroneous hypothesis of the com- 
 plete identity of the nature of the two sexes, and sees 
 only differences due to education and environment, dis- 
 agreeing thus even with the Darwinists. In his mind the 
 future of woman lies in a recourse to the remote past and 
 free love, involving only temporary and private respon- 
 sibility. Love, accepting the conceptions of the German 
 socialists, would have to retravel its road, destroying all 
 its history, in which it has always grown more individual- 
 istic and ideal. Even in human times love has striven 
 to be free, but its freedom has been interpenetrated with 
 reason, which transfigures the affections and makes them 
 permanent and not capricious. The necessity of consent 
 in such times is not the denial of the nature of things. 
 Woman, concludes Bonghi, will not be in the future the 
 handmaid or careful housekeeper of the husband, but 
 will be his real helpmate and friend. Woman, more cul- 
 tured and more versed in the affairs of life, will not lose 
 the eternal feminine. She will be intellectually vivacious, 
 affectionate, ruled by sentiment, quick of perception, 
 keen in discernment, pitying, helping, pious, and kind, 
 as she is now, and at the same time she will be active in the 
 factory, office, courts, and assemblies, and will expand the 
 treasure of her mind as she does not do now.
 
 690 THE CONJUGAL RELATION 
 
 462. Woman Should, however, be given Equal Oppor- 
 tunity. Spencer, in his last book, "Justice," asks if 
 the sphere of action of the individual gifted with the 
 higher faculties should not be larger than that of him 
 who is inferior. If a man of large stature and body 
 occupies a greater space than one who is little and thin, 
 it is just that the activities of the great and the small, 
 of the strong and the weak, of the superior and inferior 
 should have boundaries too restricted for one and too 
 extended for the other. But he hastens to add that 
 the metaphor must not be taken literally, because the 
 freedom of single individuals is not the fact presented 
 in that simple cubical form. The man gifted with 
 higher faculties, inasmuch as he has rights to physical 
 safety, the development of his energies and their 
 derivative products, makes no attempt upon the physical 
 health, the free development and ownership of his fellow- 
 being, who is his inferior. The refusal to the inferior man 
 of a sphere of action equal to that given the superior is 
 equivalent to the addition of a disadvantageous, artificial 
 rule to his natural infirmity, which sympathy and pity 
 will sooner or later lead us to destroy. Neither is it pos- 
 sible to proportion a man's freedom to his capacity, 
 since neither can be measured. Putting aside every 
 other motive, practical considerations force us to treat 
 men equally as to freedom, whatever be the degree of 
 development of which they are potentially capable. Now 
 this conception with changed terms is applied by the same 
 author to the relations between the rights of men and 
 women. There are women who have a forced intelligence 
 greater than that of not a few men. If the quantum of 
 freedom should be controlled by the capacity (admitting 
 that the operation be possible) there should in such cases 
 be no attention paid to the difference of sex. Starting 
 out with the fact that the average of physical and mental
 
 EQUAL OPPORTUNITY 691 
 
 force in woman is inferior to that in man, we do not over- 
 come the obstacle because we have no means of estab- 
 lishing the proportion between the two averages, and are 
 then forced by sentiment to compensate the inferiority 
 with greater artificial advantages. Equity demands that 
 if we do not do anything to advance woman artificially, 
 we should at least abstain from placing difficulties in the 
 path of the development of her natural energies. If men 
 and women are considered as independent members of 
 the same society, in which each should take care for his 
 needs as best he can it is not equitable to subject woman 
 to restrictions concerning occupation, profession, or ca- 
 reer. Woman must enjoy the same freedom as man and 
 enjoy the fruits of her knowledge and ability. Of the 
 equal rights which woman has before marriage, equity 
 demands she should preserve thereafter all those which 
 are not contradictory of that state; such as the rights to 
 physical well-being, property in acquired chattels, freedom 
 of belief and speech. Such rights should not be subject 
 to any limitations except as they are opposed to explicit 
 clauses in the contract. The limitations vary with time 
 and place, and upon the failure of fixed data we must be 
 content with approximation. As cases differ and condi- 
 tions vary it is very difficult to be precise about the recip- 
 rocal rights of control of the two consorts. It is neces- 
 sary to take so many circumstances into account which 
 it is not possible to foresee, even in the case of a disagree- 
 ment between two wills. But this much is certain: the 
 balance of authority should always incline to the side of 
 man who is ordinarily gifted with better judgment. But 
 in such questions reasoning has a limited force, because 
 all depends upon the character of the parties. From 
 what Spencer says we draw two conclusions: the first is 
 that he, like ourselves, believes in the principle of the 
 civil equality of women ; the second is favorable to the
 
 692 THE CONJUGAL RELATION 
 
 idea of Stuart Mill, that the regulation of the rights of 
 husband and wife should depend more upon the variety 
 of the contract than upon law. But Spencer seems to 
 admit what Mill does not; that in case of a dispute be- 
 tween the husband and wife we should in the abstract 
 give preference to the man. In respect to political rights 
 we may say preliminarily that Spencer declares himself 
 opposed to giving them to woman, since she does not bear 
 some burdens imposed on man, such as military service. 
 463. System of Property in Matrimony. There 
 are four systems which control property in marriage; 
 two of them can be called absolute, and two rela- 
 tive or medial. The system of communion is that in 
 which the goods of the husband and wife, both prior and 
 posterior to marriage, are put in a fund whose property 
 is common but whose administration is given to the hus- 
 band. Such a system is preferred by the philosophers, 
 for example, by Trendelenburg and Rosmini, because it 
 makes for the ideal of a full union. Then the system of 
 the separation of goods (preferred by the jurists who are 
 friends of precaution and of the personal freedom of 
 woman) means that the goods of the husband and wife, 
 without difference as to priority or posteriority to 
 coverture, are kept entirely distinct. The two relative 
 systems are the system of dowry (dos) and of common 
 ownership of utilities; the first is nearer the system 
 of separation, and the second nearer to that of com- 
 munion. The dowry consists of a quantity of goods 
 which the woman contributes upon her .marriage to 
 bear some of the burdens of matrimony. The hus- 
 band has the administration and enjoyment but the 
 property is in the wife. In the communion of utilities, 
 the property remains separate, the en joy mentis common, 
 and the husband has the right of administration. Law 
 furnishes a remedy of separation against the possible
 
 HISTORY OF PROPERTY 693 
 
 consequences of a poor administratioh in the two 
 relative systems. 
 
 464. History of Property in Matrimony. Among 
 the Romans marriage entered into with the "conventio 
 in manu" caused the transfer of all the goods from the 
 wife to her husband, but without the "conventio in 
 manu," a wife preserved the free disposition of her prop- 
 erty. The "conventio" was first the rule and later the 
 exception. Side by side with the system "sine con- 
 ventione" developed, little by little, with many precau- 
 tions. There was a prohibition against mortgaging a 
 dotal estate, there was absolute inalienability of the 
 dotal property, and through this came the general 
 mortgage of the husband's goods. Such a system of 
 protection flourished for a long time in Europe, but 
 in the countries of the Frankish common law the com- 
 munion of goods, an institution of the Germanic people, 
 was allowed and generally followed. The French Code 
 allows the communion of the common law, and the dower 
 rule much changed. In Italy, on the other hand, the 
 Roman rule of dowry prevails. This dotal property, in- 
 tended to support the burdens of the marriage, must be 
 inalienable. But it has been observed that the logic of 
 absolute inalienability demands that the legislature 
 impose the dower system as a necessity, so that all the 
 goods of the wife be made her dowry. The alienation of 
 the dowry can, however, be permitted by judicial au- 
 thority, whenever there is necessity or an evident 
 advantage in it. It is necessary that law protect the 
 interests of the children, and at the same time place 
 confidence in the affection of the parents. An absolute 
 and inflexible protection of the children's interest is 
 blind and sometimes produces an opposite effect. 
 
 465. History of Dowry. The system by which a 
 husband could not alienate the goods of his wife was
 
 694 THE CONJUGAL RELATION 
 
 recognized in India under the name of "stridhan." 
 Her own property included (according to Mitakshara, 
 one of the oldest treatises on Indian law) what was 
 given to her by her father, mother, brother, or husband 
 before marriage and (added this same treatise extend- 
 ing the conception of "stridhan" and quoting Manu) 
 what she acquired by heredity, partition, purchase, 
 occupancy, or discovery. Maine thinks that "stridhan" 
 was a derivative of the custom of paying the price of the 
 bride on the eve of the wedding, part to the father as an 
 indemnity for the transmission of authority, and part to 
 the bride herself. A certain number of Aryan customs, it 
 seems probable, gave the woman the goods which she ac- 
 quired and rights which she enjoyed as part of the pur- 
 chase price, once thought the only type of her personal 
 property. The relation between the Indian "stridhan" 
 and the Roman "dos" is evident, though the "stridhan" 
 was rudimentary. We know that the Brahmins combated 
 the privileges accorded by the ancient law to women. In 
 the old law there is no trace of the custom of burning the 
 widow alive upon the funeral pyre of her husband. They 
 were influenced by the belief that the condition of the de- 
 ceased would be ameliorated in the world to come by the 
 expiatory rites, and they considered heredity as the 
 foundation of such rites, which were a kind of compen- 
 sation or great sacrifice on the part of the heir, with 
 the purpose of helping the spirit of the dead. They 
 taught that woman, through her physical weakness 
 and retired life, was not fit to fulfill the sacred rites, 
 and therefore they tried to restrict the sphere of her per- 
 sonal property in conformity with their progressive 
 tendencies of subjecting private ownership in general 
 to religious servitude. The most liberal legal school of 
 India, that of Bengal, accords to the widow without chil- 
 dren alife estate in her husband's property. In thiscoun-
 
 HISTORY OF DOWRY 695 
 
 try suttee, that is, the immolation of a childless widow, 
 was general. The Brahmins encouraged the victim to the 
 sacrifice on the pyre to avoid her being clothed with prop- 
 ertyrights. From every point of view, the "stridhan" and 
 the "dos" are Aryan customs common to all the peoples 
 of that race. They have different destinies in history 
 through the influences of causes sometimes infavorable 
 to their development, or suited to give them a rigorous 
 and long existence.
 
 696 MARRIAGE AND DIVORCE 
 
 CHAPTER XIX 
 INDISSOLUBLE MARRIAGE AND DIVORCE 
 
 THE IDEAL OF INDISSOLUBILITY. THE CONCRETE DEMANDS 
 OF LIFE. THE QUESTION OF DIVORCE IN RELATION TO INDI- 
 VIDUAL RIGHTS AND SOCIAL AND HISTORICAL FACTS. DIVORCE 
 AND THE CHURCH. CAUSES OF DIVORCE. PRECAUTIONS. 
 
 466. Marriage should be Indissoluble. There is 
 no doubt that the ideal marriage is indissoluble. 
 Matrimony is the absolute union of a man and 
 woman. It is the perfect interpenetration of the vari- 
 ous sensual and spiritual qualities of the two sexes. 
 It is the "viri et mulieris conjunctio, individuam vitae 
 consuetudinem continens." Such a union would not 
 be perfect and absolute in the eyes of rational law if it 
 lacked the irrevocability which is shown in an ardent 
 affection's promise of eternal love, in the solemnity 
 of the celebration of matrimony, which accompanies 
 no other contract, in the pure emotion of the parents at 
 the cradle, in the need of educating the growing chil- 
 dren, who are always binding their parents to them by 
 new and stronger ties. The irrevocability is shown, too, 
 by the mutual duties and rights which make the adult 
 children repay the care spent upon them in their infancy 
 and early youth. And it is necessitated by the inequality 
 of the sexes, by which a woman once married is never 
 the woman of her youth, as it is said in the Bible. 
 
 467. Morality, Religion, and Politics Demand In- 
 dissoluble Matrimony. Morality recognizes, in indis- 
 soluble matrimony, love controlled by reason, which
 
 CIVIL MARRIAGES 697 
 
 gives the bond of passion its character of necessity 
 and permanence. At the touch of reason passion loses 
 its blind and violent element of sensuality, and by 
 idealization, becomes a duty. It is not true that in- 
 dissolubility destroys freedom, by decreeing a per- 
 petual love. What it destroys is the wavering and 
 sensual desire; for love, transfigured by reason, is not 
 the negation, but the base of moral freedom, which 
 only exists when impulses are governed by practical 
 mind, that is, a mind which follows the laws of the good. 
 Human freedom, to quote Vico, comes from the mind, 
 and consists in restraining and directing the prompting 
 of lust which comes from the body. Religion conse- 
 crates the ideas of indissolubility, making marriage a 
 sacrament, and proclaiming, "Quod Deusconjunxit, non 
 homo separet." The Church believes that the mar- 
 riage rite is a sacrament, because the conjugal union, as 
 a participation by man in God's attribute of creation, is 
 objectively a religious act, regardless of the intent. 
 And for politics, too indissoluble marriage is the ideal, 
 because the stability of the State and its departments 
 rests upon the stability and peace of its families: both 
 are the result of a complete, and therefore indissoluble 
 union. 
 
 468. Civil Marriages can be Indissoluble. The con- 
 ception of civil marriage is not opposed to the prin- 
 ciple of indissolubility, as the members of the clerical 
 school and the champions of the theories that made 
 the French laws of 1792 claimed. For marriage is 
 a special contract, since it comprehends the absolute 
 union of persons of different sexes. In fact, there is 
 legislation which looks upon marriage as a civil con- 
 tract but holds it indissoluble, as there is legislation 
 making it religious, but allowing divorce. From the 
 legal and civil point of view the orthodox doctrine can
 
 698 MARRIAGE AND DIVORCE 
 
 be followed that consent is necessary for the creation of 
 the contract, but not for its preservation. It can easily 
 be held that consent is a necessary prerequisite of mar- 
 riage, which, however, must conform to natural laws and 
 be absolute and irrevocable. In this respect the sub- 
 jective element should be subordinate to the objective. 
 So in contract law, it is not always true that the con- 
 tractual acts depend upon consent. The jurists say, 
 "Quae ab initio sunt voluntatis, post factum sunt necessi- 
 tatis," if society or third parties have an interest in the 
 contract. Civil marriage is not based on the principle 
 of arbitrary and individualistic ethics. It is a result 
 of the conception of a lay State, and of liberty of con- 
 science. In other words, logic does not prevent the 
 civil marriage, and refutes the theory of Grotius, 
 Puffendorf , and Thomasius. For Grotius, in his defini- 
 tion of marriage, laid emphasis on the physical side, 
 practically allowing for no difference between it and con- 
 cubinage. The difference, he says, is one of positive law: 
 "Concubinatium quemdam verum ac ratum esse conju- 
 gium etsi effectibus quibusdam juris civilis propriis pri- 
 vetur aut etiam effectus quosdam naturales impediment 
 legis civilis, amittat." Puffendorf believed that matri- 
 mony, being consensual in origin, was subject to all the 
 laws of contract. Thomasius believed that indissolu- 
 bility, conjugal fidelity, and marital authority are all 
 parts of the conjugal contract, and not consequences of 
 natural law. This ideal of indissolubility should not be 
 disregarded on the ground that law does not recognize 
 contracts which result in the abnegation of civil person- 
 ality, for marriage is not a mutual renunciation, but, 
 on the other hand, it is the acquisition of a new status. 
 Even if a husband and wife make their two natures one, 
 as Rosmini says, yet it is impossible for them to become 
 one and to preserve distinct and inalienable individuality.
 
 DIVORCE 699 
 
 In fact law protects their distinct personalities. The law 
 does not recognize irrevocable contracts, implying a full 
 or partial alienation of personality, but recognizes those 
 which, without producing such an alienation, create a 
 higher order of ethical relations. 
 
 469. Arguments For and Against Divorce. The idea 
 of indissolubility is generally accepted, both by those 
 who combat divorce, and by those who are not par- 
 tizan. Kant, Fichte, Hegel, Stahl, Trendelenburg, 
 Rosmini, Gioberti, and Ahrens agree with Hume and 
 Bentham among the English in condemning it. Comte, 
 the founder of positivism, and Proudhon believe in it. 
 While Hegel, Trendelenburg, and Ahrens agree that the 
 idea of matrimony tends to indissolubility, they permit 
 divorce on the old principle that the absolute is the 
 highest but the relative is easier of attainment. The 
 absolute union is founded on love, and when love dies 
 the union is broken and matrimony is left without its 
 true base. Reason, to which conjugal love is subject, 
 in many cases cannot without inconsistencies keep up 
 throughout life the appearance of affectionate relations 
 which are dead, when respect, which man should keep 
 in proportion to the intrinsic worth of its objects, is lost. 
 The law is not in proper relation to the facts, when, for 
 example, in case of flagrant breach of fidelity, it converts 
 the heroism of a Christian into a contractual duty. The 
 law, in such and similar cases, in preserving marriage 
 bonds, in the attempt to reawaken love where reason 
 cannot keep alive respect, is content with a nominal 
 union deprived of all ethical substance. It leaves the 
 natural order of things, because love presupposes respect 
 and there cannot be an effect without a cause; love 
 without respect is not true love, but lust. The legal 
 preservation of a union which no longer exists is at best 
 a mask. Even Rosmini, a formidable enemy of divorce,
 
 700 MARRIAGE AND DIVORCE 
 
 wishing to explain its existence among the Hebrews, 
 writes that absolute union, the ideal marriage, demands 
 for its realization a man or woman perfect by nature. If 
 they are not so gifted, to use Rosmini's words, if their in- 
 dividual natures are so vitiated as not to be worthy to 
 receive the completeness of union, which human perfec- 
 tion demands, we must make some indulgence. .This in- 
 dulgence, one philosopher adds, gives men a little leeway, 
 which is wrong in itself, but whose vice is based upon and 
 attributable to the same vice in nature. The indulgence, 
 the allowance so different from approval, is divorce, 
 which is not per se good. It is only proper to ask if the 
 hardness of heart that necessitated divorce among the 
 Hebrews has really disappeared from the earth, and if 
 human nature has so changed to-day as to make per- 
 fection attainable. It is true that education has made 
 great strides, that customs were brutal of old, that now 
 we are more delicately strung, but human nature retains 
 its old vices, if we can judge from the actual relation of 
 the sexes. They say that love is unending, because 
 one being cannot cease loving another who completes 
 his life, but they forget that in becoming unworthy of 
 love or respect the completion ceases. Proudhon's 
 statement that the subordination of love to justice, the 
 foundation of marriage, can even deny love is a paradox, 
 because the act of subordination logically presupposes 
 the existence of the end subordinated, which cannot 
 exist, according to Proudhon. It is neither true nor 
 human justice which is obtained by the ruin of 
 life, of the utilities and interests, as there is no con- 
 crete moral good to be had by the elimination of the 
 inclinations, affections, and passions. Let justice rule, 
 but do not let this world perish. In marriage let 
 marriage be ruled by justice, but do not destroy love, 
 the informing principle of the absolute union. It is
 
 DIVORCE A NECESSITY 701 
 
 said that the actuality is always inferior to the idea; 
 but it need not be opposed to it. From the idea of 
 indissolubility to the remedy of divorce there is no 
 descent. The two terms are mutually exclusive. To 
 prove this, put a full union on one side and divorce on 
 the other. The truth is that, when divorce makes its 
 appearance, the real union has ceased. It is not the 
 violent destruction of marriage, but the legal end of a 
 union, which no longer exists in fact. Defining divorce 
 as a remedy and not as a good per se, after having pro- 
 claimed indissolubility as the ideal, it is impossible to 
 say that divorce attains the ideal. Only a true eternal 
 union corresponds to the ideal: divorce marks the 
 end of a union. It begins where the ideal of indissol- 
 ubility ends, and therefore is not in fact a contradiction 
 of it. If divorce is opposed to the nature of matrimony, 
 it must be regarded as the greatest of evils. If, how- 
 ever, it is looked upon as one of the serious disorders 
 which are derived from the defects of matrimony, it 
 can be considered as a lesser ill. The ends of the rela- 
 tion are the" defect of the legal bond and divorce. It is 
 not claimed that divorce is not a remedy per se, though 
 it is not positive, being only the annulment of the mar- 
 riage. A remedy is that which fills what the evil has 
 emptied, that repairs what the latter destroys; and yet 
 there is no contradiction between the conception of a 
 cessation and a remedy, since there are many cases where 
 the ceasing of an act, habit, or condition is a remedy. 
 Some remedies aim only at destruction of the evil, while 
 others have only a reparatory virtue, but most are both 
 destructive and reparatory. 
 
 470. Divorce a Necessity because of Human Frailty. 
 Philosophy of law should not look upon divorce in rela- 
 tion to individuals or from their view-point, as ancient 
 natural law did, but should study it in its social aspects,
 
 702 MARRIAGE AND DIVORCE 
 
 weighing the advantages and evils which can come to 
 society from personal separations and dissolution of 
 marriage. It must not be forgotten that social interests 
 and conventionalities should not destroy individual rights, 
 as the latter should not be raised above social rights. 
 In this case, as in others like it, the two terms tend 
 rationally to the harmony which comes from looking 
 upon the State as an ethical organism. A State would 
 be a single physical or natural organism, in which the 
 part lives the life of the whole, if it absorbed in its 
 eminent right the rights of the individuals, who have 
 their own personality, and realize the idea of man in one 
 of his branches. If divorce were not possible, but in its 
 place there was only legal separation, which keeps the 
 bonds in force and dispenses only with cohabitation, 
 the evil would be great. Separation necessitates soli- 
 tude, embitters one's nature, and beclouds one's mind. 
 It is a cause of concubinage, and of the increase in the 
 number of illegitimate births. Sometimes, too, the 
 nominal bond which remains increases the dishonor of 
 the innocent party, since it imposes upon him, if rich, a 
 duty of paying with a brave mien for the continual and 
 irremedial infidelity of the other. The prosecution for 
 adultery allowed by law is of no useful service, 
 since no one cares to become ridiculous by a lawsuit, 
 to enforce a possible imprisonment of a few months 
 or a year. Cases are not lacking, too, when murder 
 has been the result; and not rare are the acquittals 
 upon the plea of the unwritten law. In other cases, 
 suicide brings an end to suffering which the victim 
 cannot bear. When the system of separation pre- 
 vails, the children find their parents living in illicit 
 unions, a fact which endangers the respect which 
 they should bear towards the authors of their days. 
 It is not true that this system makes reunions of those
 
 DIVORCE A NECESSITY 703 
 
 once separated possible, because the cause of the division 
 cuts deep before they deliberately place themselves 
 before judicial authorities in order to obtain the sentence 
 of separation. The proceedings themselves increase the 
 division, and, in the majority of cases, destroy all reason- 
 able hope of reconciliation. And it has been observed 
 that the few reunions which have taken place in the 
 higher classes of society are pro forma, temporary, and 
 dependent almost every time upon extrinsic reasons. 
 On the other hand, we are forced to agree, with those 
 who combat divorce, that not all who want to be freed 
 from conjugal bonds would be willing to marry again, 
 but from this it cannot be supposed that the greater 
 number of innocent husbands and wives would not 
 avail themselves of the opportunity of remarriage given 
 by divorce. There are not many men whose reflection 
 is deep and critical; old impressions are strong and 
 tenacious. The decision has its roots in a complexity 
 of peculiar and variable conditions, in the degree of 
 excitability, in the power of reaction against impressions, 
 in examples of well assorted unions. If it is true that 
 some people, who had reached a certain age, victims of 
 conjugal disillusions, would restrain their instincts, this 
 cannot be said of most. This is no exaggeration of the 
 animal tendencies of human beings. Impulses of primi- 
 tive vivacity, although they may decrease, still con- 
 tinue; and not all succeed in stifling them. And until 
 that end is reached, the two great evils of the system of 
 absolute personal separation, concubinage, and the illegit- 
 imate births, will go on. "Malo electio est in culpa"; 
 a wrong gives no rights, say the enemies of divorce ; and 
 clearly no few disillusions are born of an improvident 
 choice made with a light heart. But in the choice one is 
 never bound to demand what is truly perfect, and to 
 abstain from all that is not so in the fullest sense of the
 
 704 MARRIAGE AND DIVORCE 
 
 word. All aspire to the absolute, but no one attains it. 
 Sometimes imperfections are potential, in embryo at 
 the first, and develop later. In other cases they can 
 be learnt only through intimate experience. And even 
 if known at the moment of choice, there is always a 
 hope of destroying or eradicating them by the new life, 
 by the controlling force of affection which has the 
 nobility to disallow the existence of refractory or un- 
 amenable nature. Would you make a fable of the soul's 
 generous nature, where love and worth act together to 
 make men good, and refuse it recognition? 
 
 471. Divorce has Real Evils. We must not, how- 
 ever, deny the real evils of divorce. Above all, 
 society would be forced often to submit to the scandal 
 of the marriage of the divorced and culpable party 
 with the person who was the cause of his fault. For 
 the statutes forbidding this are useless because of 
 the legal uncertainty of the adultery. In the second 
 place, it cannot be in accord with the sentiments of 
 civilized nations, particularly those of southern Europe, 
 that a woman who has been the wife of a man still living, 
 should be the wife of another, or that a man should be 
 the husband of two women, both of whom are living, 
 or further, that the children should have at the same 
 time a stepfather, a stepmother, and their own parents. 
 It is true, however, that customs alter with years, and 
 perhaps this repugnance may become markedly modified. 
 In the third place, it is not an unfounded fear that 
 divorce will be obtained for causes prepared, with malice 
 prepense, by those who wish without cause to break the 
 marital yoke. Acts of severe injustice, cruelty, and 
 desertion will be committed with the secret intention 
 of forcing a divorce. Cases will not be impossible 
 where husbands will make opportunities for their wives' 
 unfaithfulness in order to gain a divorce and remar-
 
 REAL EVILS 705 
 
 riage. All these evils will develop, threatening to 
 undermine the family and society, if divorce comes to 
 be looked upon as a new form of freedom, which can be 
 availed of as any other. A people which has such a con- 
 ception of divorce is in a state of moral decadence, no 
 longer understanding the worth of marriage or of ethical 
 relationships. With them divorce will aid the work of 
 corruption, and hasten their ruin. The Romans were cor- 
 rupt when they began to avail themselves of the rights 
 of repudiation and divorce as means for the attainment 
 of their individual wishes, falling into the excesses of 
 which history tells us. Justinian even made marriage 
 dissolvable by mutual consent, without the introduction 
 of the judiciary, or preliminary allowance of alimony. 
 In France, too, in the past century, morality was at a 
 low ebb, and the law considered divorce as a result of 
 the great principle of freedom. The Assembly allowed 
 divorce upon the desire of either husband or wife 
 for incompatibility of temper. The Convention gave 
 more rein, abolishing the prohibitions of remarriage 
 within a year after the declaration of divorce by mutual 
 consent, and allowed divorce for six months desertion. 
 Matrimony was, therefore, a status to be proved, as 
 it is among the savage tribes; the Convention itself was 
 forced to repeal its decrees which had produced infinite 
 scandals. But if divorce is not a new form of freedom, 
 but rather as an enforcement of conjugal duties, social 
 morality, far from being lessened, may be strengthened by 
 it. The fear of divorce in uncorrupted ages, with people 
 of deep rooted customs will insure the fulfillment of 
 conjugal duties, and make divorce a remedy of little 
 frequency. It has been shown that divorce can coexist 
 with good morals and not affect them : take the example 
 of ancient Rome for hundreds of years. In England 
 it was allowed for many years, and was rare. The
 
 706 MARRIAGE AND DIVORCE 
 
 morality of a nation depends on many causes, among 
 which must be placed divorce and separation. But in 
 combination with many different causes it is impossible 
 to determine what influence each factor bears to the 
 resultant state of morality. 
 
 472. The History of the Catholic Church and Di- 
 vorce. Such are the standards by which divorce must be 
 weighed in history. Allowed in America, England, 
 Germany, Switzerland, Norway, Denmark, Belgium, 
 Holland, France, and in Austria for the Protestants, 
 and at the present forbidden only in Italy, Spain, and 
 Portugal, divorce has different results upon the various 
 moral conditions of the nations dependent upon what 
 point of view is taken. The Church from the beginning 
 endeavored to inculcate the principle of indissolubility 
 as better conforming to Christian beliefs, but met with 
 complete success only in the Xlth century. It was in 
 that century that the conception of marriage as a sacra- 
 ment, formed stage by stage, developed in its fullest 
 vigor and became a universal theory and belief of the 
 Church. The victory of the Church was connected 
 with the formation of this belief and its decided preva- 
 lence at that time. The influence of Christianity is 
 manifest in the laws of Constantine, which restrict the 
 power of repudiation, extended again by the emperors 
 who succeeded him. This influence is seen, too, in the 
 limitation of divorce introduced in the Germanic laws. 
 The Church carried out its original plan better with the 
 Germans than the Romans, for many reasons. The 
 first was the want of the sacramental idea among the 
 Romans; the second, that the right of repudiation with 
 the German belonged to the husband only, and was 
 unpopular on the score of being a privilege, while with 
 the Roman it could be availed of either by husband or 
 wife. The Christian influence must have had, and in
 
 THE CATHOLIC CHURCH 707 
 
 fact did have, greater influence where there was 
 inequality. We can see that the Church in its long 
 struggle against divorce was constrained to make not 
 a few serious compromises, but this does not mean that 
 it ever abandoned its ideal. The Church did what 
 every being must do in order not to vanish from the 
 earth; it adapted itself to the experience of time and 
 customs. We must not forget that life is a constant 
 struggle for the supremacy of the subjective over the 
 objective, a never ending compromise with external 
 contingencies. And it is only just to recollect that the 
 exceptions to indissolubility allowed by the Church are 
 not due to the Germanic element, but to its own prin- 
 ciple and Christian belief, in which the law of the spirit 
 was opposed to that of the flesh, the celestial city to the 
 terrestrial, faith to knowledge, voluntary poverty to 
 labor. It should not be a cause of wonder that celibacy 
 was encouraged, and that marriage came to be looked 
 upon as a remedy of an evil, the instinct of fornication. 
 The ideal is always the resistance and victory of the 
 spirit over the lusts of the flesh; marriage, willingly or 
 unwillingly entered into, is not perfection, since it pre- 
 supposes a carnal union. The ideal of marriage which 
 the Church followed is a sufficient reason for the excep- 
 tions that it made in the French Capitularies, the result 
 of an agreement between clergy and laity in council, 
 legislation of a time when kings suffered for their inabil- 
 ity to convert canons into statutes. The Capitularies 
 recognized the right of the woman to marry again, be- 
 cause she could not smother her instincts. It decreed 
 that if an individual committed adultery with his 
 mother-in-law, he could never marry, and she could 
 never lie with her innocent spouse, and the latter could 
 marry again. The husband can marry again if the wife 
 commits adultery with her brothers- or father-in-law,
 
 708 MARRIAGE AND DIVORCE 
 
 because she must abstain from all carnal intercourse. 
 The marriage of a priest and his niece is invalid ; both can 
 marry, but since "reprehensible est ut relictam sacerdotis 
 alius homo habeat," this marriage can be voided, and the 
 second husband, "si se continere non potest, aliam 
 accipiat." So when the principle of indissolubility 
 became a dogma, through moral precepts becoming law, 
 the Church again adapted itself to the needs of life. In 
 fact, the dogma of the Council of Trent was so drawn up 
 as not to wound the people living in divorce in the 
 bosom of the Greek Church and the Venetian Republic. 
 With the establishment of this dogma, the Church felt 
 the need of increasing the causes of nullity, thus con- 
 tinuing to allow some divorces. But it cannot be said, 
 on this account, that canon law recognized divorce, 
 because the causes of nullification are prior to the 
 marriage, or are so imagined, while those of divorce are 
 posterior. 
 
 473. Causes for Divorce; Adultery. The kind 
 and number of causes for divorce must be deter- 
 mined by principles of justice harmonized with social 
 conditions. The number of causes should not be in- 
 creased except upon a clearly shown necessity, in order 
 to hinder, or at least not to hasten the destruction of 
 custom, nor should it be so small as to exclude just 
 and impelling causes; for divorce should be a sufficient 
 remedy. The causes ordinarily recognized by wise 
 legislation and reason are adultery, cruelty, indignities, 
 convictions for infamous crimes, or life imprisonment, 
 and desertion. Adultery is always destructive of mar- 
 riage, according to the German word "ehebruch." Many 
 think that the adultery of man or woman is the same 
 of itself, but that the consequences are different, because 
 an adulteress destroys the paternal relation, which is not 
 the case with an adulterer. Hence, statutes should
 
 CAUSE FOR DIVORCE 709 
 
 require peculiar circumstances to make his adultery 
 grounds for a divorce, as, for example, that he keeps his 
 mistress in the home, or openly elsewhere, or at least 
 that the act is accompanied by circumstances which 
 made it an indignity to his wife. This theory holds that 
 adultery in either spouse has the same moral character, 
 but with different consequences. If this difference in 
 result be accepted, ft follows logically that the adulteress, 
 who does more harm, should be more severely pun- 
 ished, but it does not follow that the husband, except 
 in the above cases, has aright to fail in respect and honor 
 due his wife, to interrupt or perhaps destroy by secret 
 adultery the continuity of the conjugal relation, and 
 to disturb the rational relation by making some other 
 woman the mother of his children. Justice in the 
 interest of woman's morals and dignity demands that 
 there be equality in the crime, and that the easy privi- 
 lege of man be done away with. 
 
 474. Cause for Divorce, Excesses, Cruelty, and Indig- 
 nities. And to excesses, cruelty, and indignities, Savoye- 
 Rollin spoke truly before the Tribunal: "Think that the 
 hand that should protect dealt the blow, that the mouth 
 which uttered the insults should have used the tones 
 of love; think that all the conditions of this contract 
 which bind the victim to the executioner are violated 
 by him, and that all are kept by the victim." The 
 conviction for infamous crime destroys the respect and 
 moral value of the criminal. Life imprisonment does 
 the same, but further renders the object of marriage im- 
 possible. Desertion is also a just cause for divorce, but 
 the statute should be carefully made for the determina- 
 tion of its characters, otherwise it will serve as a cloak 
 for fraud and trickery, as under the French laws of 
 1792. We need not admit as causes, insanity, diseases, 
 or change of religion, because this is contrary to the
 
 710 MARRIAGE AND DIVORCE 
 
 feeling of kindness and piety, which would destroy the 
 most intimate union of pleasures and griefs through an 
 involuntary misfortune in homage to the most abject 
 selfishness. As difference in belief does not hinder the 
 contraction of marriage, it should not, upon subsequent 
 development, be a ground for its dissolution. As absolute 
 union in practice is obtained only more or less imperfectly, 
 it does not seem necessary to introduce these causes. 
 
 475. Divorce by Mutual Agreement. Should divorce 
 be allowed upon mutual consent? Montesquieu says 
 that the law establishes causes for divorce where incom- 
 patibility is greatest. The statement is true, because the 
 effective mutual incompatibility is the clearest denial of 
 the absolute union of matrimony. In this case, mutual 
 consent is not the cause of the dissolution of the marriage, 
 but is only the sign. It cannot be alleged that allowing 
 such a cause of divorce is reducing marriage to contract. 
 It would serve to hide the woes and shame of the home, 
 it would avoid the ridicule, and prevent the necessity 
 of a legal accusation, which sometimes results in impris- 
 onment. But to ward off a series of abuses fatal to 
 matrimony, the law should surround it with the greatest 
 precautions. It should declare, in imitation of the 
 French Code, that this cause could not be availed of 
 before or after a certain age, and that the consent of 
 parents or grandparents should be obtained, that half 
 the estate should be given to the children, that no other 
 marriage should be contracted for three or four years, 
 and that a long time should precede the granting of the 
 divorce. It is clear that non-reciprocal incompati- 
 bility cannot be a cause of divorce, because marriage 
 is not a contract, but something more than a contract, 
 and therefore cannot be dissolved without mutual con- 
 sent. Marriage cannot lie in the caprice of a single 
 person, as happened in France in the XVIIIth Century.
 
 SOME PRECAUTIONS 711 
 
 476. Some Precautions in Divorce. From others 
 precautions of the French Code are not to be dis- 
 regarded, which tend to restrain possible abuses of 
 divorce. The culpable party, since he is in fault, 
 should lose all benefits; the innocent party should lose 
 nothing. In the interest of morality and family peace, 
 the culpable consort should not be able to marry his 
 accomplice. Any second marriage, in fact, should be 
 allowed only after a long interval. Because of the seri- 
 ousness of marriage, the divorced couple should not be 
 allowed to remarry, as happened in France. The posi- 
 tion of the children in divorce should be the same as a 
 case of annulment by canon law, or separation by civil 
 law. The innocent party should keep the children, 
 who lose no advantages given them by law or by the 
 nuptial agreement, except those consequent on a second 
 marriage. Remarriage can certainly not be forbidden 
 because of the children. The father and mother retain 
 their authority, and contribute to their education accord- 
 ing to their financial ability. It is evident that law, 
 owing respect to the principles of liberty, cannot deny 
 equal recognition to the separation of the Catholics and 
 the divorce of the Protestants or atheists. The law acts 
 upon all in their quality of citizens, and gives them a 
 choice of method.
 
 712 THE PARENTAL RELATIONSHIP 
 
 CHAPTER XX 
 THE PARENTAL RELATIONSHIP 
 
 THE TENDENCY TO RE-LIVE IN OTHERS. THE BASIS AND 
 PHASES OF THE "PATRIA POTESTAS." GUARDIANSHIP, ITS 
 KINDS. AND TRUSTEESHIP. ADOPTION. CHILDREN BORNOUTOF 
 MATRIMONY. THE RIGHT TO PURSUE THE FATHER. LEGITI- 
 MATION. 
 
 477. Parental Relationship a Derivative of the Con- 
 jugal. From the conjugal relation upon the birth of chil- 
 dren springs the parental relation. At first this kind of 
 union is more abstract than concrete, since the children 
 are not able to join their will and act to the will and 
 act of their parents, and a partnership is not generally 
 effective without the union of wills and acts. It becomes 
 concrete from the moment when the children acquire 
 knowledge of their relations and ends. From that 
 moment the cooperation of will is a fact. 
 
 478. Parental Relationship is Fundamental. Human 
 nature feels the need of self-amplification. Man by 
 marriage lives in another; by generation he relives in 
 others. By the profound and wonderful act of gener- 
 ation, writes Rosmini, the father extracts and multi- 
 plies his own feeling, to which he admits a new 
 person who is of the same quality as the father, and 
 forever joined to him in sentiment, intelligence, and 
 affection. The act of generation is accomplished by 
 the cooperation of the three fundamental divisions of 
 man, since with true sentiment at the point of highest 
 excitement he spurs himself to the attainment of his
 
 IS FUNDAMENTAL 713 
 
 act, that is, the creation of a son ; therefore between father 
 and child there is a close and intimate communication, 
 through the common end, which is the result of common 
 feeling. And, although the corporeal union ceases when 
 the child sees the light of day, there always remains 
 the union of objects, because the son in Holy Writ is 
 called increment of the parents, their off spring, and Dante 
 speaks of the child as the flower and fruit of the parents. 
 From this it appears, Rosmini goes on, that the father has 
 at first a causal relation with his child, since he created 
 the new life; to this is added a second necessary chain, 
 a communication of sentiment between the father and 
 his child, which can never be broken. Upon this double 
 tie depends the parental relation. In the causal rela- 
 tion the parents are always superior to their children 
 and can exercise a power which is not licit over any 
 other persons. In that of unity of sentiment they are 
 urged to a special and strange love for their children, 
 and this love, as every other true sentiment of mankind, 
 is a duty. From the connection of blood between parents 
 and children are born the "jura sanguinis," common to 
 the father and mother, indestructible until the child 
 leaves the domestic circle. Such rights are essentially 
 individual, seigneurial, and appertain to ownership. 
 From the social relation, originating in the blood rela- 
 tionship, but not indissoluble as the former, are de- 
 rived the "jura familise" and the rights of the domestic 
 society, belonging in particular to the head of the house. 
 Nature infuses in the mind of parents two sentiments, 
 the sentiment of having children for their own good, 
 and that of having children for the good of the children 
 and their descendants. Children, without loss of per- 
 sonal dignity, are medial in the joy and good which their 
 parents can obtain through them, and on the other hand, 
 are ultimate in respect to the care to which they are
 
 714 THE PARENTAL RELATIONSHIP 
 
 entitled. The rights of the parents growing out of the 
 children's medial condition, their duties emanate from 
 the ultimate condition which the children enjoy in their 
 own personality. To take a child's earnings is a right 
 of lordship and contract, founded on the sentiment of 
 having children for one's own advantage; the right of 
 providing for a child's welfare is founded on the senti- 
 ment of having children for their good and the good 
 of their descendants. If these two sentiments exist in 
 perfection, it is found that the first is easily satisfied and 
 is willing to sacrifice itself to the second. It seems that 
 the patria potestas is a seigneurial right, subordinate, 
 however, to the right of control of the domestic society 
 which makes for the utility and good of the children. 
 
 479. Rosmini's Theory not that of the Natural Cause. 
 Rosmini's theory must not be confused with the old 
 belief in the deduction of the parental rights and the 
 patria potestas from natural and causal forces acquired 
 in the completion of marriage or procreation. This 
 natural force was raised to the level of spiritual prin- 
 ciples and ethical purposes in order to become the human 
 basis of the patria potestas. Rosmini has been careful 
 to reinforce the causal reasons with the necessary bond 
 of a communion of sentiment between the parents and 
 children, by which the parents are constrained to a 
 strong love for their children, a love which is a duty as 
 well, he says. Now the duty of loving one's children 
 resolves into that of procuring their good, of protecting 
 them, of supporting and educating them, transfusing, 
 in Plato's words, the benefits of maturity and old age 
 into adolescence and youth, adding wisdom to strength. 
 Thanks to this duty, the institution becomes rational, 
 and the primary law, or that of the "antecedents" of 
 nature of the Stoic School, interpenetrates with the 
 "consequents," or secondary law, and receives formality
 
 PATRIA POTESTAS 715 
 
 and strength from the latter. In this duty chiefly, and 
 also in the sentiment of procreation of children, must be 
 found the true and ultimate foundation of patria potestas. 
 That Rosmini's conception is always the patria potestas 
 is shown by his expressed subordination of the seigneu- 
 rial right, contained therein, to the right of control 
 of the domestic society. The seigneurial right is an im- 
 mediate consequence of causality, as the right of control 
 owes its origin to the parents' love, which is a duty. 
 The expressions which he sometimes uses could give rise 
 to ambiguity, but an attentive reading of the pages de- 
 voted to the parental relationship will destroy all doubt. 
 Control, lordship, and mediality have a different mean- 
 ing, when used of persons and things. The child is 
 subject to his father's control and lordship, and is 
 medial, as far as a person can be, keeping always his per- 
 sonal dignity, Rosmini says. The father is the cause 
 of his children, as far as man can be such a cause, so a 
 son can be called the effect of his father. Antiquity, 
 he says, developed in the child such an extension of the 
 existence of his parents, that it went to the excess of 
 considering the son as the property of the father. It 
 seems in this connection that modern legislation is in- 
 clined to look upon the father as merely medial to the 
 welfare of the son. 
 
 480. Patria Potestas Governed by Essential Reason. 
 In primitive law the patria potestas was born from the 
 passive obedience of the children, because the father had 
 strength and practical sense. In India religion coun- 
 selled the faithful to study twice the sacred books, to 
 retire from active life, in old age becoming ascetics 
 and hermits. This never meant that the sons, at any 
 time or against their father's will, could demand a 
 division of the estate. Paternal authority, judging 
 from the rules of Manu and Nerada, has always been
 
 716 THE PARENTAL RELATIONSHIP 
 
 absolute among the Indians. In Sparta the lack of 
 patria potestas resulted in the destruction of the family. 
 In Athens it existed, though it has no special name, allow- 
 ing a certain guardianship and protection, based on the 
 presumption of the intelligence of the father, according 
 to Socrates. This principle, absolutely enforced, did 
 not insure filial piety or obedience, because the son was 
 encouraged to measure his father's intellect with his 
 own, and in such a struggle he may find his own superior- 
 ity, and feel no longer bound to obedience. In Aris- 
 totle's time the insufficiency of this foundation for the 
 patria potestas began to be felt. It began to decay, pre- 
 paring the way for the dissolution of the State. In 
 Rome the patria potestas was extensive, absorbing the 
 personalities of the children. It approximated owner- 
 ship, "plena potestas in re," and was limited only by the 
 magistracy of the son, or by a war, which separated the 
 son from his father. The patria potestas was so con- 
 trolled by the Romans as to oppose its rights to those 
 of the State. Through this almost unlimited power 
 there was a kingdom, existing within a free republic, 
 making it strong and vigorous. Neither was domestic 
 piety lacking in the family, but was developed, even 
 where paternal authority was severe, and tempered the 
 latter's vigor. In the Middle Ages the patria potestas 
 assumed, as a result of barbaric law, that character of a 
 power of defense and guardianship, appertaining to the 
 "mundium," which it had in Athens. With the preva- 
 lence of individualism, the institution became a means for 
 individual advantages. It is not a cause of surprise, 
 therefore, that the father came to be looked upon as 
 the means for the welfare of his sons, and not as ulti- 
 mate in himself. In homage to personal freedom there 
 was an effort to lessen the patria potestas, for it was 
 thought that a free constitution could not coexist with
 
 PATRIA POTESTAS 717 
 
 a family founded on its vigorous authority, forgetting the 
 example of Rome, and the others offered by Greece, 
 where the decay of the State began with the weakening 
 of family ties and paternal power. In our age the 
 patria potestas has lost all its ancient ferocity and 
 severity, and has become stronger when rationally 
 exercised. True strength lies in the intellect, Spinoza 
 says; the senses and passions are weaknesses. Pater- 
 nal rights are not placed above the duties of taking 
 thought, instructing, and educating the young, but are 
 made subordinate, and founded on the duty. The 
 ethical relations are now recognized again in their in- 
 tegrity and intimate organic connection. But the 
 father ceases to be considered as medial only, and is ulti- 
 mate. We can repeat in this regard what has been said 
 before of man and the State in this reciprocal medial 
 and ultimate relation. 1 
 
 481. The Mother Enjoys the Patria Potestas. From 
 what has been said, it is a logical inference that 
 the patria potestas belongs without distinction to both 
 parents, because both are bound to support, instruct, 
 and educate their children. It certainly cannot be 
 denied the mother, who takes so great and so important 
 a part in the up-bringing. It must, however, be exer- 
 cised during coverture by the father in order to give 
 unity to the family through the gifts and powers belong- 
 ing to man, which have been discussed under the head 
 of marital authority. After coverture the patria potestas 
 should not cease nor be changed to guardianship as 
 under the French Code, but should be exercised by the 
 survivor as in the Italian Code. This Italian innovation 
 conforms perfectly to natural law, since there is no 
 reason why this authority, common during coverture, 
 should upon the death of either consort be converted into 
 
 1 Cf. 173 ante.
 
 718 THE PARENTAL RELATIONSHIP 
 
 a guardianship. The law in that hypothesis would dis- 
 trust the judgment of the parents, in which, as far as the 
 domestic relations are concerned, it has always put the 
 greatest confidence. As to the rights of the patria 
 potestas, we must point out that if the power of imprison- 
 ing a recalcitrant son is no longer accorded to the father, 
 he cannot be denied the power of driving him from 
 the house, or of putting him in a house of correction. 
 If the patria potestas be strictly enforced, it is clear that 
 no action for partition of the estate can be allowed the 
 children. As to the estate, the father has the right 
 of administrating the estate of the children, because of 
 their incapacity, and he can enjoy the income. This 
 interest is given to the father to his own use, and is 
 seigneurial in its origin, being subordinate to the admin- 
 istrative power of the domestic society. It is, therefore, 
 subject to certain conditions, and is exercised only over 
 certain possessions. The patria potestas is not uncon- 
 trolled ; the laws have methods of tempering and ending 
 it, if the parents are unworthy through some grave fault. 
 482. Guardianship. During the patria potestas there 
 is no place for guardianship as an institution by itself, 
 since the latter is included in the former. But the patria 
 potestas can come to an end while there are still per- 
 sons in the family who, because of age, have need of 
 education, support, and protection. In this case there 
 must be a guardianship which appears as a substitute 
 for the lost paternal power. It is a social duty, since 
 everyone must aid those who cannot take care of 
 themselves or their property. Guardianship is developed 
 within the domestic sphere, and enters into private 
 law in that aspect, though it has at the same time 
 both a public and social element, because of the duty 
 involved. It is connected, therefore, with the function 
 of the State and with the principles of public law.
 
 GUARDIANSHIP 719 
 
 This public character of guardianship does not pre- 
 suppose any relationship between guardian and ward, 
 nor can it be called a substitute for paternal authority 
 even in case of mental weakness. The rights of the 
 patria potestas, however, are always included, though 
 in a restricted manner, in guardianship, whether of a 
 minor or adult. The Roman law of guardianship was 
 concerned with the administration of the estate; modern 
 law tends to the development of the educational 
 functions, the especial property of the patria potestas, 
 so important in our days, in which a good education 
 is a fruitful asset. From this premise it can be inferred 
 that guardianship, in its ethical character, should not be 
 confused with the "negotiorum gestio," because on 
 one hand guardianship is a domestic institution and 
 includes to a certain extent the rights of the patria 
 potestas, and on the other, it is a "munus publicum." 
 In fact the agent can be appointed at choice, while the 
 guardian is appointed by the father, the law, a magis- 
 trate, or a family council. Testamentary guardian- 
 ship is the first and predominating form, for the father 
 is better fitted than anyone else to designate his successor 
 in the education of his son. Upon a failure to appoint 
 by will, the law can with due regard to circumstance 
 appoint a guardian following the degrees of consanguinity 
 in which it always places confidence. If there are no 
 relatives, the guardianship is donative, that is, it lies in 
 the gift of the court or family or guardianship council. 
 To-day a guardianship can be decreed because of mental 
 weakness. 
 
 483. History of Guardianship. In Greece guar- 
 dianship was testamentary and donative, because there 
 was not enough confidence in the heir presumptive 
 of the ward to trust him as guardian. In Rome it 
 began by being testamentary, became agnative, and
 
 720 THE PARENTAL RELATIONSHIP 
 
 finally donative. Among the Germans it was part of 
 the "mundium," and belonged only to the nearest rela- 
 tive. With the Lombards the guardian had to have 
 judicial authorization for any important act. The judge 
 had to call together the family in many cases, for ex- 
 ample, in the alienation of realty. Such assemblies were 
 the beginning of the family councils presided over by a 
 magistrate. 
 
 484. The Creation of a Guardianship. The law 
 of guardianship should not presume the fulness of 
 paternal love in the guardian, nor true filial devo- 
 tion in the ward. It should adopt the greatest pre- 
 cautions to insure the guardian's care and attention 
 to the need of the ward, placing great confidence in 
 consanguinity. If the deliberation is the act of many, 
 and the execution the act of one, if the State should 
 watch the exercise of the guardian's authority, it is a 
 good plan to entrust the deliberation to a family council 
 presided over by a magistrate, and the execution to the 
 guardian. This surveillance on the part of the State 
 can be exercised by a magistrate alone, or by the family 
 council presided over by a magistrate. The Italian 
 Code follows the second plan. A guardian differs from 
 a trustee, who acts for emancipated minors or spend- 
 thrifts. The trustee has control of the estate alone, 
 while the guardian is invested with all the rights of the 
 father to a limited extent. We must note that the 
 cestui gue trust cannot do anything without the inter- 
 vention of the trustee. Also, according to the Italian 
 Code, he needs for certain acts the authorization by the 
 family council, and for others the sanction of the court. 
 
 485. Adoption. We have said that man not only 
 wants to live in others, but wants .to relive in others. 1 
 The first want is satisfied in marriage, the second in 
 
 1 Cf. 441 ante.
 
 ADOPTION 721 
 
 generation. A couple may remain childless, and some 
 men do not marry because of sickness or from reasons 
 of prudence. The childless couple are unhappy because 
 they do not relive in others; those who abstain from 
 marriage because of disease or prudence are doubly 
 so, since they neither live nor relive in others. The 
 State has no right to condemn these individuals to 
 solitude and unhappiness, or to deny them civil recog- 
 nition of spiritual generation, which is not less real 
 than the corporeal, and is a result of philogamy. 
 And so some assume willingly the care of supporting 
 and educating children who have been abandoned 
 or left to their care, acquiring in time sentiments not 
 unlike those of true paternity, and awaiting in return 
 the filial devotion of these children, when they have 
 grown. Man feels that in the family relation, and in 
 the affections which are based on it, is the only true 
 happiness that is given him to enjoy, and when they fail 
 him, he seeks their closest substitute, tired of the lone- 
 liness in which he sees himself condemned to live. Before 
 legal adoption, there was de facto adoption founded on 
 the desires of human nature. "Adoptio imitatur natu- 
 ram," taught the ancients, "atque in eorum solatio in- 
 venta est, qui liberos non susceperunt, aut susceptos 
 amiserunt." From another point of view, adoption 
 helps the preservation of a family threatened with 
 dissolution. It has its motive in philogamy, and at 
 the same time perpetuates the ethical and organic 
 unity which is the molecule and centre of the highest 
 and larger ethical organism, the State. In history, 
 the more the family has appeared as an organized 
 and powerful nucleus with religious, civil, and political 
 characteristics, the more has the need for adoption 
 been felt, which strengthens this nucleus and prevents 
 its dying out.
 
 722 THE PARENTAL RELATIONSHIP 
 
 486. History of Adoption. Adoption is in accord 
 with the constitution and principles of the oldest re- 
 publics. We may note that adoption is based upon 
 the relationship of the parties to it, and when the 
 relationship was not natural it must have been civil. 
 Adoption at that time could not have been entered 
 into with the object of comfort, but with the social 
 and political object of the preservation of the family. 
 In fact the Roman conception of "solatio libero- 
 rum amisorum" is found in the early law in the ex- 
 ceptional cases of adoption by a woman. In modern 
 times, since the family is still a unit, the need of adop- 
 tion, though less strongly felt, still exists. The unity 
 is not as strong or as complex as is the Roman family, 
 but it exists nevertheless, and cannot fail so to do, since 
 the family is an ethical body. The difference between 
 the two unities lies in the former being in the interest 
 of the father, the latter in the interest of the family 
 itself. This understood, it is clear that adoption, which 
 is the legal act by which there is established a relation of 
 paternity and filiation between two strangers, cannot 
 be considered as of exclusive private import, conclusive 
 merely of the personal satisfaction of the parties. Adop- 
 tion produces a change of status, because the adopted 
 child becomes the child of the adopters and acquires 
 rights of inheritance under the intestate laws, besides 
 the right to support and to the name of the adopters. 
 A personal status is not within the scope of contract, but 
 of law, hence the reason for the solemnity of adoption 
 and the intervention of a court. An adoption is always 
 the image of nature, and therefore cannot break the ties 
 of blood relationship between the child and his family. 
 Its motive lies in a personal sentiment, though conse- 
 crated by law, and from this it follows that its effect 
 should be limited to adopter and adopted and should
 
 OPPOSITION TO ADOPTION 723 
 
 not extend to their respective families. The above 
 breach and extension have no part in the true and genuine 
 conception of adoption. Adoption is advantageous in 
 hindering tardy marriages, ordinarily of short duration, 
 and seldom happy. 
 
 487. Opposition to Adoption not Founded on Reason. 
 Adoption has met not a little opposition, especially in 
 France, where it had no traditions. The French juris- 
 consults, followed in Italy by Pisanelli, state that nature 
 alone can create the relation of paternity and filiation, 
 and that law cannot destroy the sacred affection derived 
 from ties of blood. But they do not reflect that adoption 
 is not introduced to destroy natural ties, or to give the 
 artificial relation greater effects than the natural. They 
 do not remember that it is only the image and cannot 
 have the appeal of the true family, whose interest it can- 
 not prejudice, since it cannot exist if there are legitimate 
 children. It only prejudices collaterals and relatives, 
 who would inherit upon failure- of closer heirs, but it is 
 not just to sacrifice the individual's freedom and happi- 
 ness to these ties, which do not belong to the family in 
 the strict sense. The enemies of adoption go further, say- 
 ing that it is a useless institution since there is such tes- 
 tamentary freedom allowed, that the beneficence can be 
 shown by a legacy without need of introducing any arti- 
 ficial relations. These have not thought that ordinary 
 benevolence is not the motive of adoption but benevo- 
 lence which is part of philogamy and assumes the forms 
 of paternal and filial devotion. Furthermore, adoption 
 should not be considered only in its relation to the individ- 
 uals, whose comfort it is, but in relation to the family 
 which it tends to preserve. Nor have they showed that 
 adoption is a feudal institution, for it flourished under 
 primitive law, in India, Greece, and Rome. It is not essen- 
 tially feudal, because the grant of titles and arms did not
 
 724 THE PARENTAL RELATIONSHIP 
 
 depend upon the will of the individual. Adoption, it is 
 at last argued, is employed to avoid the legal prohibition 
 of the recognition of hidden filiation. But does not the 
 court supervise an adoption, seeing that it does not cloak 
 a crime? The Italian lawyer, Vigliani, argued that 
 point in the Senate ; "Either the paternity of the adopter 
 will be known or suspected, and the court will refuse the 
 petition for adoption, or will be unknown and hidden, and 
 the adoption will take place, and it does not seem just to 
 complain that an unfortunate child, deprived of help and 
 family, should find both in adoption without scandal to 
 society, ignorant of the hidden ties of nature which bind 
 him to the adopter." 
 
 488. The Status of Illegitimate Children. Law, 
 being an ethical principle, should not encourge illicit 
 unions. It should, however, protect children born out 
 of matrimony from the acts of the parents, in whom 
 often love is lacking, or is smothered by the interest of 
 their legitimate families or by conventionality. It 
 should visit all the consequences of the fault upon its 
 authors, and not extend it to others. Law cannot 
 make the condition of children born out of matrimony 
 equal to that of legitimates, because it must guard the 
 morality and order of family life. Children born out of 
 matrimony can be either natural, adulterous, or 
 incestuous. The last two are sprung ex nefario coitu, 
 from criminal unions. But should the crime and tort 
 of their parents subject them to the payment of dam- 
 ages and penalties, and mark them from innocent child- 
 ren? The disgrace and loss of certain rights under the 
 civil law belong, Rosmini states, to that age of the 
 world in which the individual principle was involved 
 in general nature, and operative only therein, the stock 
 was punished for the acts of the individual. Now that 
 age has passed. Through the New Testament, human
 
 ILLEGITIMATE CHILDREN 725 
 
 nature has been awakened and fully developed. Public 
 opinion has changed. Now law should punish severely 
 the fault of the parents, with penalties, however, 
 which affect them alone, protects the innocent victims, 
 and declares them clear of all infamy and free from all 
 consequent harm. Justice demands that adulterous 
 and incestuous children should be considered in the same 
 manner as natural children (as the Austrian Code de- 
 crees) and should not have only pietatis gratia, neces- 
 saries. Adulterous and incestuous children also have 
 rights to upbringing, instruction, and support by their 
 parents, whose legal responsibility, like the patria potes- 
 tas, should be extended over them. The law can allow 
 the recognition of these classes of children without fear 
 of more scandalous suits than are possible to-day in actions 
 for the disinheritance of children, and for the annulment 
 of the bonds of matrimony for incest. Through their rec- 
 ognition adultery and incest will be discovered, and 
 justice will therefore be rendered capable of punishing 
 its violators, the victim will have a money indemnity, 
 and individual responsibility will be increased, making 
 criminal unions much fewer. Neither can a limited right 
 of inheritance be denied such offspring for the same 
 reason that they must be given rights (which are in Italy 
 actully given to natural children), that is, because of their 
 innocence, and because "factum cuique suum nocere 
 debet." But though the rights of adulterous and inces- 
 tuous children should be the same as those of natural 
 children, the rights of illegitimates cannot be made 
 equal to those of legitimates, because the scope of 
 personal integrity lies wholly within matrimony, since 
 all reproduction and educational functions belong to 
 the true family, as ordered by the State, in accordance 
 with the dictates of natural law and the conditions of 
 civilization. We must harmonize the sacred rights
 
 726 THE PARENTAL RELATIONSHIP 
 
 to life, and the obligations of parentage, with the 
 demands of the whole, or society. In history, when 
 marriage was regulated rather by custom than by stat- 
 utes, and everything was controlled by the head of 
 the family, there was but little difference made between 
 legitimates and illegitimates. Examples of this are the 
 heroic times among the Greeks, and the patriarchal times 
 with the Hebrews. The Greek law, subsequent to the 
 heroic ages, treated illegitimates with severity. This 
 severity continued until Pericles, who had no legitimate 
 offspring, made his natural son legitimate. In Rome 
 concubinage was recognized, owing to the disparity of 
 conditions. Children thus born had the right of pretor- 
 ian inheritance from the mother and her family, but from 
 the father could obtain only necessaries. In the day of 
 the Empire they were considered as natural children of the 
 father, who was given the patria potestas, and who could 
 legitimize them, without having the power of making 
 any will in their favor, a power given over a portion of 
 the estate by Valentinus. Justinian admitted them to the 
 inheritance if the father died intestate, or upon failure 
 of wife and children, if he had left them nothing. In all 
 cases the natural children had a right to necessaries. 
 According to Justinian, however, children ex nefario 
 coitu had not even this right, while in the time of Gaius 
 they were recognized as cognates, and enumerated among 
 the "vulgo qusesiti," admitted to pretorian inheritance. 
 The children exdamnato coitu had no right of action against 
 their father, but the relation could be proved to stop or 
 declare an incestuous marriage, or to annul a legacy in 
 their favor. Finally, concubinage was forbidden by 
 canon law. There immediately arose, on one hand, mor- 
 ganatic marriages, contracted by persons of unequal con- 
 ditions, giving a right of inheritance to a portion of the 
 estate, set apart at the time of the marriage, and on the
 
 INQUIRY INTO PATERNITY 727 
 
 other hand, the marriage of conscience, secretly cele- 
 brated, and not producing special or definite legal effects. 
 Concubinage continued too, despite the prohibition, but 
 the illegitimates (though they sometimes ascended 
 thrones) were considered incapable of inheritance or of 
 ecclesiastical preferment, and were the subjects of the 
 right of necessaries only. Their estates upon their 
 death belonged to the lord or the State. Only after a 
 long period were they given the power to will. The 
 French Revolution championed the rights of all to par- 
 take equally in the inheritance except adulterous chil- 
 dren. The Code gave the natural children a right of 
 inheritance of a smaller portion than the legitimate, 
 but gave the offspring of adultery and incest the right 
 to necessaries alone, dividing them into natural chil- 
 dren recognizable and natural children non-recognizable. 
 489. Inquiry into Paternity. If the laws assigned 
 a certain position in the family to illegitimates, they 
 should not be deprived of the means of finding their 
 father and claiming that position. Some codes, like the 
 French and Italian, recognize the right to prove ma- 
 ternity, but forbid the inquiry into the paternity, 
 though the French Code allows the latter in cases of 
 rape, and the Italian in cases of rape by force, if the 
 act coincides with the time of conception. It is evident 
 that the codes are unjust, because they protect the 
 monstrous privilege of the seducer, who escapes all 
 responsibility for his acts, leaving the unsophisticated 
 and well meaning girl to face great trouble, and wreaking 
 the effect of his brutal selfishness upon an innocent 
 creature. The inquiry into the paternity would not be 
 an innovation. It has the evidence of history in its 
 favor because, allowed by the Roman, it was retained by 
 the German and canon laws, and flourished until the end 
 of the XVI Ith Century, here surrounded by precaution
 
 728 THE PARENTAL RELATIONSHIP 
 
 and guards, here without them, to the ease and frequency 
 of scandalous abuse. In France this abuse was possible, 
 and the honor of respectable men and the peace of the 
 family was often in the power of a cunning harlot, helped 
 by bribed witnesses and blackguards. When the right 
 of action was done away with in France, because of the 
 continual injustice which it permitted, the civil law was 
 divided into two classes, one of which followed the old 
 law, and one the French. In the nations which fol- 
 lowed the French law, and especially in France itself, 
 through the study of comparative legislation, there 
 arose a doubt of the intrinsic justice of the prohibition, 
 and subsequently a reaction against it. The prohibition 
 of the inquiry into paternity was regarded as an obvious 
 and unreasoning form of the supremacy of the male, 
 who is stronger than the female. It was noted that 
 there was no need to regard the forced recognition of the 
 fruits of seduction or a passing intimacy as an offense 
 against morality, if the law recognizes a spontaneous 
 recognition, and admits the children of a mistress to 
 intestate inheritance. The ending of the brutal privi- 
 lege and the awakening of feeling of responsibility might 
 exercise an effective restraint. This is the opinion of 
 several philosophers of the law, for example, Ahrens 
 and Trendelenburg. Rosmini criticizes the plan, because 
 in illicit unions the mother can always be found, while 
 often the father cannot. The father is often not found, 
 he says; but why exclude him from punishment the times 
 that he is? We can find many imperfections in the 
 statutes due Lo the poor development of the power of 
 abstraction. At first, legislation was content with rea- 
 soning on principle, which was sometimes right but 
 not always. In those cases in which the principle failed, 
 natural law suffered from their decrees, as in the case 
 for which there was no statute, or where a statute was
 
 PROOF OF PATERNITY 729 
 
 violated. On this score, therefore, the perfection of the 
 law lies in acting upon the general principle, which gov- 
 erns the majority of cases, and upon other principles and 
 special rules, which one by one embrace the refractory 
 cases, and cover the whole field of rational law. The 
 marriage ceremony, to quote Rosmini, cannot be con- 
 sidered as the only proof of paternity ; there are others. 
 All are sometimes inefficient. A wedding establishes 
 rather a legal presumption than a logical proof. It is 
 not, therefore, a source of wonder that the presumption 
 should yield to the truth of the fact of the illegitimacy of 
 the son, otherwise proved. And if it is right to give 
 the adulterous and incestuous children the same rights 
 as the natural, it follows that the first can be recognized 
 and legitimized, and that they too can inquire into the 
 identity of their father, if such search be reasonably 
 conducted. 
 
 490. Proof of Paternity. There are two methods 
 by which the paternity of a child born out of wed- 
 lock can be determined, by the belief of the father, 
 and by circumstantial evidence. The father's belief 
 can be enforced by proof of his written statement, 
 proved by witnesses, or by other evidence about his 
 relations with the mother, and should not be restricted 
 to a formal recognition. In countries where the pri- 
 ority of civil marriage is not required, the religious 
 ceremony supplies such proof, and is always considered 
 by the State as a formal recognition. It is clearly an 
 implied recognition if the son is called, and treated, and 
 generally reputed to be the son. The proof of paternity 
 from circumstantial evidence now allowed in case of 
 rape, should be extended to other cases in which there 
 are sufficient motives to admit it. The "custodia 
 ventris," for example, consisting in cohabitation "more 
 uxorio," in the watching of the man over the woman
 
 730 THE PARENTAL RELATIONSHIP 
 
 in the period of conception, joined with the honorable 
 behavior of the woman herself, the simple seduction of 
 a young girl, and the seduction of an honest woman of 
 any age through false promises of marriage, should be con- 
 sidered the principal prerequisites for inquiry into the 
 paternity. Justice demands it, and the proof is possible 
 and not always difficult. It must be remembered that 
 only the girl who has been seduced, not the woman 
 of many affairs, can be allowed to testify. The abuse of 
 proof was possible when the sworn statement of the 
 pregnant woman, the victim of seduction, was enough 
 by itself. The possibility was lessened when the other 
 requirement of lack of customary intimate relations was 
 added, and was not much to be feared when a writing 
 by the father was necessary, as the Convention decreed. 
 491. Legitimation. The law should also provide 
 that what is not originally moral may become so. 
 And therefore it should allow, as a reparation of an 
 injustice, legitimation by subsequent marriage, or by 
 decree in cases in which the subsequent marriage is 
 not possible. It follows, of course, that the legitimated 
 son has the same rights as the legitimates. This 
 principle, and that of responsibility, is connected with 
 the existence of receptacles 1 for abandoned children, 
 which is the end of the civil estate of thousands 
 and thousands of men, and which increases the number 
 of abandoned children, and is the infamous cause of 
 the abandonment of legitimates, especially in large cities. 
 These receptacles are a worn-out form of blind and irra- 
 tional charity, and are closed in most civilized countries, 
 giving way to various maternity hospitals which take chil- 
 dren at their birth. Such institutions have the merit of 
 
 1 These receptacles are placed in public places in the cathedrals of 
 Southern Europe. In them a child can be placed, who is supported by the 
 money placed in the receptacle by charitable persons. They are 
 described by Victor Hugo in "Notre Dame de Paris."
 
 LEGITIMATION 731 
 
 preventing the abandonment of legitimate children, and 
 often provide for the future life of the disgraced infant. 
 Some laws permit the parents to remain unknown; 
 others declare that the mothers must give their name. 
 Without doubt the latter, based upon the principle 
 of responsibility, conforms better to rational law. 
 The first do not enforce vigorous justice, because they 
 fear infanticide. In fact, the fear is not unfounded, 
 since it is a question of saving one's honor and of avoid- 
 ing disastrous consequences. But on this subject, as on 
 every other, much depends on the morals and customs 
 of the people. The fear is baseless, however, as far as the 
 closing of the receptacles is concerned, since it has been 
 seen that there is more infanticide where the receptacles 
 are in use than where they are not. This does not mean 
 that the presence or absence of the receptacles is an effec- 
 tive cause of the increase or decrease of this kind of crime. 
 Experience shows that infanticide generally is committed 
 before the mother feels the emotions of maternity, and 
 also where there is no one whom she trusts, to whom she 
 can temporarily give the fruit of her dishonor. If the 
 emotions are felt, if the confidant is there, the baby is 
 saved, and it little matters whether it is the receptacle 
 or the charity, provided the mother need not give her 
 name at the birth. The receptacle should be placed by 
 the bedside to avoid infanticide.
 
 732 INHERITANCE 
 
 CHAPTER XXI 
 
 DEFINITION, HISTORY, AND BASIS OF 
 INHERITANCE 
 
 THE CONCEPTION OF HEREDITY. INTESTACY AND TESTACY 
 IN HISTORY. INHERITANCE AND ANCESTOR WORSHIP. DOC- 
 TRINES AS TO THE BASIS OF INHERITANCE. DOMESTIC CO- 
 OWNERSHIP AND THE RIGHT OF PROPERTY, AS BASES FOR 
 INHERITANCE. 
 
 492. Law of Inheritance Affects all Relations of Life. 
 Death extinguishes man and many of his relations, but 
 his goods, rights, and obligations continue to exist and 
 form that "nomen" or "universitas juris" which is called 
 his estate. "Hereditas," says the early Roman law, "nihil 
 aliud est quam successio in universum jus quod defunc- 
 tus 'habuit." The "heres" is placed in the position of 
 the "herus" and represents his personality, becoming the 
 new subject of the rights which are the "universum 
 jus defuncti." He is the successor with full title and 
 is held bound to pay the debts of the decedent and 
 bear the burdens of inheritance, differing from the 
 successor under a particular or testamentary title, who 
 does not represent the personality of the deceased 
 and inherits only what is left to him and must bear 
 only the burdens inherent therein or those imposed 
 by the testator. Now inheritance, on one hand, is con- 
 nected with the family, because it appears when that 
 is decomposed into its elements or another family; on 
 the other hand, it is connected with property, since it 
 effects a transfer of the estate. The law of inheritance,
 
 AMONG THE OLD NATIONS 733 
 
 therefore, logically presupposes the parental and conju- 
 gal relations and domestic and matrimonial law. It can 
 be considered as the last phase of family law and even of 
 private law, since the private relations have their end in 
 individual and domestic life. The foundations of this 
 kind of law lie in the family community and the.free will 
 of the owner. If all the law of heredity were based on the 
 family, the individual could be entirely absorbed by the 
 collective entity and would lose his personality ; no form of 
 inheritance save the statutory and unalterable would be 
 recognized. If, however, it were based entirely upon the 
 will of the disposing individual, the family would be de- 
 nied , and the individual would have an untrammelled right 
 to decide upon his own duties. In this case there would 
 be no laws of intestacy, and testamentary inheritance 
 would cover everything. The law of inheritance should, 
 therefore, harmonize the rights of the family with the 
 just claims of the individual, without forgetting that the 
 right of succession, being directly referable to the family 
 touches the "seminarium republicse," and therefore is of 
 great interest to the State. 
 
 493. Inheritance Among the Older Nations. In 
 primitive times the right of the community prevailed, 
 and not that of the part or individual. In such 
 times intestate succession, which represented the ab- 
 sorbing right of the family, was the only and prevalent 
 right, and not testacy, which is the act of an individual. 
 Traces of true testacy are not found in the Book of Gen- 
 esis although the patriarchs had a certain right of confer- 
 ring their goods in case of death. In Athens there was 
 an institution of appointing an heir, in the form of 
 an adoption, provided there were no children. This 
 shows that at first only children could inherit. In the 
 earlier days there was no power of will among the Spar- 
 tans, but it was introduced by the laws of Epithadeus.
 
 734 INHERITANCE 
 
 Neither did it exist among the Germans, nor does it to-day 
 among the tribes and people who are in the condition 
 of the ancient Germans. In Rome inheritance was first 
 regulated exclusively by statute, which considered the 
 "sui," then the "agnati," and later the "gentiles." The 
 earlier and solemn form of the "testamentum calatis com- 
 itiis" was a law, and needed the consent or sanction of 
 the people. The first manner of making a will, perhaps 
 because it was the first, could not be availed of independ- 
 ently of the "lex," and could not be free from customary 
 forms. Testacy is not a primitive fact, but neither is 
 it an institution of mere civil or positive law , as we will see. 
 Not all that is of latter development, however, is artificial ; 
 it is true that the nature of things is nothing but their 
 birth, but this understood in its fullness includes genetic 
 development or evolution. Human nature consists more 
 in the fieri than in the esse, whence it follows that the 
 natural is not that alone which develops first. And fur- 
 thermore, it can be noted that what is natural, rational, 
 and universal at the beginning seems to be introduced by 
 art and appears as a simple particular fact. It is only 
 later that it comes to be recognized in its true char- 
 acter, when the mind is fully developed, as the great 
 Neapolitan philosopher said. A will, properly so called, 
 was a Roman invention. In Rome the freedom of 
 the testator was untrammelled, as can be seen from 
 the laws of the Twelve Tables, in which it is written, 
 "Pater familias uti legassit super pecunia tutelave rei 
 suse, ita jus esto." It must not be supposed, however, 
 that the power of willing in Rome was a method of 
 disposing in favor of strangers. It was simply a means 
 by which that complexity of rights included in the 
 patria potestas passed from one individual to another. 
 The inheritance was always "universitas juris," and in- 
 cluded the "sacra" and domestic ceremonies. This was
 
 FORMS OF ROMAN WILLS 735 
 
 true not only in Rome but also in Athens, when the power 
 to will began there, and in Bengal. Neither can it be said 
 that the will in Rome was a method of creating inequal 
 ities, because it served equitable purposes and was a cor- 
 rective of the law which excluded from the inheritance 
 the natural children and those who had been emanci- 
 pated. Great, there fore, was the horror of the Romans of 
 dying intestate. The real inequality arose with feudal 
 law which recognized primogeniture. A feud once hav- 
 ing become hereditary, the overlord had an interest in 
 keeping a single son responsible for military service. 
 Wherever, says Maine, the patriarchal power became 
 political there arose the right of primogeniture which is 
 of two kinds. In India and western Europe, primogeni- 
 ture is the passing from father to son, while with the 
 Celts upon the death of the first son the second takes his 
 place, excluding the sons of the first because of the 
 desire to have a mature man as the head of the house. 
 494. Forms of Roman Wills. The first form of 
 Roman will was that "calatis commitiis." It is a 
 question whether the people intervened in the Commi- 
 tia to convert the will of the testator into a statute, or 
 acted merely as witnesses. But it seems probable that 
 at the time when the transformation from intestacy to 
 testacy was taking place the people had to make the dis- 
 position of the testator a law and that later they merely 
 acted as witnesses. The second form was "per ses et lib- 
 ram" to which recourse was had when one could not make 
 a will in the solemn manner. It existed at the same time 
 as the will "calatis commitiis." The "emptor familiae" 
 was not an heir-at-law but was "loco heredis" and took 
 the estate without the debts, for which reason some 
 people have likened him to the adopted son under the 
 laws of arrogation. The will "per aes et libram" con- 
 sisted, when coexisting with the "calatis commitiis," as
 
 736 INHERITANCE 
 
 a method of necessity. It was divided into two parts, 
 the "mancipatio" and the "rogatio." The "mancipatio" 
 transferred the property, and the "rogatio" gave the 
 title of trustee to the "emptor familiae" of particular 
 legacies. Gaius says: "Acessit deinde tertium genus 
 testamenti, quod per aes et librarri agitur, qui enim 
 neque calatis commitiis neque in procinctu testamentum 
 fecerat si subita morte urgebatur amico f amiliam suam id 
 est patrimonium suum mancipio dabat eumque rogabat, 
 quid cuique post mortem suam dari vellet." Then the 
 testament "per aes et libram" ceased being supple- 
 mentary and became the ordinary form. The "manci- 
 patio" was considered a formality, not productive of the 
 transference of ownership in favor of the "emptor fami- 
 liae," who was no longer "in loco heredis." When the 
 "mancipatio" took on this form the testator could 
 revoke it. Gaius says: "Sed ilia quidem duo genere 
 testamentorumindesuetudinem abierunt ; hoc vero solum 
 quod per aes et libram fit in usu retentum est sane nunc 
 aliter ordinatur atque olim solebat; namque olim fami- 
 liae emptor, id est qui a testatore familiam accipiebat 
 mancipio heredis locum obtinebat; et ob ei mandabat 
 testator, quid cuique post mortem suam dari vellet; 
 nunc vero alius heres testamento institutur, a quo etiam 
 legata relinquuntur, alius dicis gratia propter veteris 
 juris imitationem familiae emptor adhibetur." The 
 "nuncupatio," the other part of the will, consists in the 
 declaration before witnesses that the writing contained 
 the last dispositions. Ulpian states: "In testamento, 
 quod per aes et libram fit, duae res aguntur, familiae 
 mancipatio et nuncupatio testamenti. Nuncupatur 
 testamentum in hunc modum, tabulas testamenti testa- 
 tor tenens itadicit: Haec uti his tabulis cerisve scripta 
 sunt ita do, ita lego, ita teslor, itaque vos, quirites, tesit- 
 monium praebitote; quae nuncupatio et testatio voca-
 
 HISTORY OF WILLS 737 
 
 tur." It seems that the second phase of mancipatory 
 will was determined by reasons of utility, as, for example, 
 the need of creating several heirs at the same time, or 
 of creating them conditionally. The third form of will 
 was the pretorian. The pretorian will was written 
 because it was fundamentally only the will "per aes et 
 libram" without the formality of the "mancipatio" and 
 "nuncupatio." Cicero, Gaius, and Ulpian speak of the 
 pretorian will, "septem signis testium signatum," or of 
 "tabulas quae septem testium signis signatas sunt." 
 Some fragments emphasize the "bonorum possessio 
 secundum nuncupationem," and from this it can be 
 seen that the will proper could sometimes be nuncupative. 
 495. History of Wills in the Middle Ages. We 
 have said that there was no form of will among the 
 Germans. The right of relationship and the active and 
 passive solidity of the connotation of the family were 
 absolute. Tacitus writes of them: "Heredes, succes- 
 soresque sui cuique liberi, et nullum testamentum. Si 
 liberi non sunt, proximus gradus in successione, frates, 
 patrui avunculi." The inheritance contracts or bilat- 
 eral and irrevocable disposition which bound one or 
 both of the parties in the acquisition or loss of rights 
 of inheritance were admitted by the German laws and 
 prepared the way for testacy. Such agreements were 
 prohibited by Roman law because they affected the 
 revocability of the will and because the spectacle of 
 a contractual heir who looks with avid eye upon the 
 estate of him who is still alive, and who wastes loving 
 care upon his future successor certain of the estate, 
 is not moral. It is clear that the introduction of 
 hereditary agreements makes the will possible, being in 
 contradiction to that absolute predominance of family 
 rights which existed at the beginning. The irrevocability 
 of such dispositions remaining always intact, at first
 
 738 INHERITANCE 
 
 property and possession were transmitted, afterwards 
 property alone and not possession, and finally the trans- 
 mission of both was postponed until the death of the 
 owner. The growing influence of the Roman idea over 
 the clergy and a recognition of bequests for the good of 
 the soul and of donations pia causa, which approached 
 nearer and nearer to a will, hastened its reappearance 
 in the Middle Ages. The Church was interested in 
 holding as valid dispositions in its favor which did not 
 wholly conform to civil law because unaccompanied by 
 all the formality and prescribed conditions. It concerned 
 itself only with the certainty of the will of the testator; 
 in this canon law approximated natural law. Now from 
 these notes on the history of inheritance it can be seen 
 that the right was not born like the Minerva from the 
 head of Jove, because at the first it was public, oral, 
 and irrevocable, later it became secret, written, and 
 revocable. Perfection is always found in development 
 and not in the initial form. 
 
 496. Testacy and Ancestor Worship, The historical 
 development of succession is connected also with the 
 evolution of property and of the family, which we 
 have mentioned before. 1 Here we may notice the 
 connection between inheritance and ancestor-worship 
 in primitive times. This old cult does not refer to 
 remote and fabled ancestors, but to the great-grand- 
 father, grandfather, and father, and in general to per- 
 sons known to the worshipers who, transformed into 
 divinities, continue to protect the family and to exercise 
 their authority, rewarding good actions and punishing bad . 
 This cult was practised by the greater number of nations, 
 among whom were the Indians, Greeks, Romans, Chinese, 
 and ancient Japanese. Sacrifices to ancestors were not 
 unknown to the Hebrews as a foreign custom or pro- 
 
 l Cf. 242, 440, ante.
 
 TESTACY AND ANCESTOR WORSHIP 739 
 
 hibited idolatry. The "sacra privata" of the Romans had 
 great importance and influence over the laws and edicts. 
 Little by little the restrictions placed on inheritance by 
 such a cult to the advantage of the pontifical authorities 
 disappeared and the domestic gods became mere larvae. 
 Lubbock and Spencer and, before them, Vico, looked upon 
 ancestor-worship as an imaginative attribute of primitive 
 men such as we have just said. Lubbock says that the 
 savage is unable to understand death and is apt to con- 
 fuse it with sleep. In sleep the spirit lives, although the 
 body seems dead. It is natural, therefore, that savages 
 should introduce food into the tomb, because death is 
 analogous to sleep. The spirits of the dead live in another 
 world and have, therefore, great power; whence the cus- 
 tom of praying to the dead. Spencer classifies society 
 by the criterion of a belief in a spiritual world. All 
 people admit the return to life of another self after death. 
 Among them, a large number suppose that this self exists 
 a long time after death. In this number are those nations 
 which practise the propitiation of spirits. Among these 
 nations there are some unprogressive and stationary in 
 which the cult of ancestors perpetuates itself like a 
 belief in the immortality of the soul, and among the last 
 there are not lacking some that confer a preeminence 
 upon a series of illustrious ancestors. For example, they 
 exalt the leaders of a conquering race into a group of 
 obscure ancestors. A savage, says Spencer, believes in 
 another self because he looks in springs and listens to 
 echoes, noticing the reflection and the sound. It was a 
 common belief among the Indians that the living rela- 
 tions rendered the fate of the soul of the dead more com- 
 fortable by oblations. The Brahmins, the ministers of 
 the oblations and ceremonies, had an interest in the divi- 
 sion of ownership on account of the multiplication of acts 
 of piety and gifts. Wherever ancestor-worship wasestab-
 
 740 INHERITANCE 
 
 lished, paternity was recognized, judging from the fact 
 that the ancestor worshiped and the worshiper both be- 
 long to the masculine sex. The ancestor worshiped had 
 all the appearance of the Roman paterfamilias, or the 
 subject of the patria potestas, writes Maine, the author of 
 the greatest researches in primitive law on this subject. 
 In India the eldest legitimate son could offer sacrifices 
 for the soul of the deceased with the greatest efficiency. 
 But if he was lacking, there succeeded to the rights 
 and inheritance (that was a kind of state of spiritual ser- 
 vitude) the son of the daughter designated by the father. 
 Among the Athenians there was the same custom, be- 
 cause a father who feared to die without sons had the 
 right to bequeath his cloak to his daughter and her future 
 husband ; the son of this marriage grown to a certain age 
 became a member of the family of his maternal grand- 
 father, taking his name and his estate. If the father died 
 intestate, the daughter was bound to marry a relation. 
 So too, in the Middle Ages, it seems that where a daugh- 
 ter could not inherit, her son sometimes had the right of 
 succession. There being no right in India to designate a 
 daughter through whom the line of inheritance should 
 go, it fell to the adopted children and then to the illegiti- 
 mate children of women living in the family and subject 
 to the authority of the decedent. These sons could ful- 
 fill all the rights, as even a slave could in Rome. If all 
 these persons were lacking, there was the means of 
 "niyoga" for the celebration of rites, which was practised 
 even by the Hebrews and which shows, according to 
 McLellan, the reality of the succession of polyandry to 
 promiscuity. The sacrifices by this institution had to 
 be celebrated by the son whom the widow had by a 
 cognate relative, or, if there was none such, by an 
 agnate, a member of the same family as her husband, 
 or of the same caste. Moses ordered that if anyone
 
 TESTAMENTARY RIGHT 741 
 
 died without a son, his brother could marry his widow 
 and thus give children to the decedent, of whom the 
 first bore his name. In India the inheritance of col- 
 laterals presents no little obscurity and at the begin- 
 ning was not clearly determined. Upon the failure of 
 relations in the descending line, the spiritual relations, 
 the master, the co-disciple or king were called to the 
 inheritance. It was believed that a collateral could 
 not celebrate the sacrifices with sufficient efficiency. 
 Later the hierarchic repugnance to fictitious affiliations 
 necessitated their admittance. At the beginning, when 
 the patriarchal family was formed, the mother was not 
 worshiped, nor the maternal grandfather in his turn, 
 since they were not equal in importance to the paternal 
 ancestors. 
 
 497. Foundation of the Testamentary Right. Vari- 
 ous have been the theories of foundation of inheritance 
 and especially of testamentary inheritance. The theories 
 of Plato and of Aristotle on this subject were inspired 
 directly by the political conditions of the place and 
 time in which they were formed. Plato taught* that the 
 right to make a will is the result of the excessive con- 
 descension of the legislature, since the testator did not 
 have full consciousness at his last moments ; that for such 
 a right there should be substituted the perpetual trans- 
 mission of the estate in the same family ; and that upon 
 the failure of sons, the father should have the power to 
 dispose of only one-tenth of his estate, the remainder 
 going to his adopted son. Aristotle saw no other means 
 for the preservation of the estate in the family than the 
 abolition of the testamentary power, for which he would 
 have substituted perpetual transmission in the male line. 
 Roman philosophers, on the other hand, preferred the 
 will, largely Roman in its birth and development. Cicero, 
 Seneca, and Quintilian, assigning to this right the natural
 
 742 INHERITANCE 
 
 base of the sentiment of friendship and benevolence, 
 were careful to bring to light the close connection be- 
 tween testamentary power and foresight for the future. 
 The jurisconsults did not seek philosophical principles, 
 but they did not know how to conceive of the power to 
 will as the result of indulgent laws. Testamentary power 
 in the eyes of Ulpian had but one relation to law, and that 
 was to find in it no obstacle. "Lege obvenire hereditatem 
 non improprie quis dixeret et earn quse ex testamento 
 defertur; quia lege XII. Tabularum testamentarise 
 hereditates confirmantur." And if Papinianus says, 
 "Testamenta factio non priviti sed publici juris est," 
 he did not mean to deny the natural base of the act of 
 the last will, but was emphasizing external and incidental 
 forms. The commentators discuss whether a will be 
 "jure naturae et gentium," or simply "juris civili." 
 Theophilus accepts the belief that it is "jure naturse et 
 gentium," and enlarges the catalogue of Hermongenianus 
 in the law "ex hoc jura," of the Digest. The Glossists 
 and Alciati combat the natural origin of the will, basing 
 their arguments on various citations from the early law. 
 Bartolus and Baldo cite other places in opposition, 
 and follow the contrary belief. Donnellus and Cujas 
 develop the belief of Theophilus, and state that the 
 right to will is based on the real connection between 
 the individual and posterity. Among the writers on 
 natural law who represent the two opposite doctrines, 
 Grotius and Puffendorf are the most distinguished. 
 Grotius believed that the power to will lies in natural 
 law and likened it to a contract, defining it as an 
 alienation, conditional upon death, revocable until the 
 last moment of the life of the alienor, with reservation 
 of possession and enjoyment in his favor. Wolff, 
 Burlamaqui, Lampredi, Kant, and among the modern 
 authorities, Troplong, accept the idea of Grotius.
 
 TESTAMENTARY RIGHT 743 
 
 Kant finds in the acquisition of an inheritance not a 
 common and regular acquisition but an ideal one. 
 He observes that the right conferred by a will upon the 
 heir is the right of accepting after the death of the 
 testator his promise made in his last moments to give 
 his goods under certain conditions. The acquisition of 
 the inheritance is based on a fictitious or ideal contract 
 between the alienor and his heir which presumes accep- 
 tance in the manner indicated, because everyone wishes 
 to enrich himself. The heir acquires a right of inheri- 
 tance, not an inheritance, of which he has the property 
 but not the possession, since he has only an actio for it. 
 On the other hand, Puffendorf argues that a will is a 
 creation of civil law and opposes its assimilation to con- 
 tract, because a contract presupposes a meeting of two 
 minds, which does not happen in the case of a will. Puf- 
 fendorf is followed by Hennecius and St. Thomas, who 
 cannot be persuaded that one man can transfer his estate 
 to another when his will is no longer efficacious and he is 
 no longer the owner. The French law of 1791, which 
 abolished almost entirely the right to will, is the logical 
 consequence of the conception that testacy has its foun- 
 dation not in the nature of things but rather in conven- 
 tion and social utility. The speeches of Mirabeau, Robes- 
 pierre, and Tronchet were inspired by the principles of 
 Puffendorf, as Gabba says in his book on inheritance. 
 First Bodin, afterwards Mably and Rousseau, accepted 
 the Aristotelean theory that the State should dispose 
 of the deceased's possessions, trying to keep them 
 as far as possible in the family. Among the jurists 
 prior to the codification, Bynkershoek says that when 
 a man dies his goods are vacant, and by natural 
 law anyone can take them. Cardinal De Luca and 
 D'Aguesseau hold that the will belongs to positive law. 
 Vinnio and Voet approve of the theory of Grotius. Grav-
 
 744 INHERITANCE 
 
 ina thinks that the origin of the right to will is natural. 
 Finally, Leibnitz, in order to find a principle on which to 
 base his theory of testacy, had recourse to the immortality 
 of the soul. In the discussion which preceded the forma- 
 tion of the Code Napoleon, Bigot-Preameneu claimed 
 that the will of the owner was the rule and interven- 
 tion of the law, an exception, because intestacy rested 
 entirely upon the presumption of the will of the testator. 
 Treilhard thought that the will had a natural origin. Por- 
 talis, finding the inseparability of the right to will and 
 ownership, admitted that both rights were of the same 
 nature. Such a conception has become common to phil- 
 osophers and jurists of our century who think that 
 intestate succession is the effect of family ownership. 
 The philosophers and jurists of our age sometimes 
 oppose the principle of individual ownership to that 
 of family control, and vice versa, wishing to base the 
 right of succession exclusively on one or the other of them. 
 So some base the right of succession on the express will 
 of the owner and succession ab intestato upon the pre- 
 sumption of his will, excluding the idea of domestic co- 
 ownership. Others, on the contrary, like Hegel, Cans, 
 and Stahl, make intestacy a primitive and normal succes- 
 sion and testamentary succession secondary and imitative, 
 thus depriving the latter of a strong foundation. The 
 real harmony lies in the antithesis of the two principles, as 
 we will see ; but first it is necessary to remark that the 
 socialists, hostile to private property, combat (as is logi- 
 cal) the right of inheritance. Lassalle is distinguished in 
 our day for the criticism of such a right, founded accord- 
 ing to him on two antiquated notions, the absurd contin- 
 uation of the will of a dead man, and the aristocratic 
 co-ownership of goods in the Roman family. We may 
 remark too, that the modern collectivists limit their denial 
 of the right of inheritance to land and instruments of
 
 FAMILY CO-OWNERSHIP 745 
 
 labor and recognize them for personalty, in which they 
 recognize private property. 
 
 498. Intestacy is Founded on Family Co-ownership. 
 Before determining the foundation of inheritance, it 
 is necessary to make two observations. The first is that 
 the right of inheritance refers to social man and not to 
 man in a hypothetical state of nature or isolation, and 
 secondly to point out that a will is not essentially con- 
 nected with the last instance of life but can be made at any 
 time. These two considerations save the mind from prej- 
 udices which have had no little influence on the erroneous 
 solution of the question. Now coming to intestacy, it 
 cannot be doubted that its principle lies in consanguinity 
 or in that ethical organism of the family which shows it- 
 self by a community of goods. When the family becomes 
 certain and establishes itself in certain places, its definite- 
 ness prompts its members to the cultivation of land and 
 later makes the beginning of ownership, which appears 
 as a collection of means suitable to the preservation and 
 development of that collective body. Ownership in a 
 family should undergo modification according to the 
 nature and purpose of the family itself, which is an inter- 
 penetration of persons, a communion of sentiments, affec- 
 tions, ideas, and wills. There cannot fail to be co-owner- 
 ship. In every age and country the members of the 
 conjugal and domestic societies have made assignments of 
 family goods upon the death of one of them and have 
 thought themselves injured if a stranger took possession of 
 any. The sons, participators in the community, did not 
 acquire upon the death of the father a new right but merely 
 obtained greater freedom in the administration of the 
 goods. In the early Roman law we have found this con- 
 ception, which is not aristocratic but directly the opposite. 
 "In suis heredibus evidentius apparet continuationem 
 domini eo rem perducere, ut nulla videatur hereditas f uisse,
 
 746 INHERITANCE 
 
 quasi olim hi domini essent qui etiam vivo patre quodam- 
 modo domini existimantur : unde etiam filiusfamilias 
 appelantur, sicut paterfamilias, sola nota hac adjecta per 
 quam distinguitur genitor ab eo qui genitus est ; itaque post 
 mortem patris non hereditatem percipere videntur: sed 
 magis liberam bonorum administrationem consequuntur: 
 hac ex causa licet non sint heredes instituti, domini sunt." 
 The domestic co-ownership of the Romans, however, is 
 so rigorously conceived as to render the goods of the 
 family inalienable, acquiring the quality of "sui et 
 necessari." The inalienability of family goods not only 
 descends from the ancient Roman law but is the prin- 
 ciple of all primitive laws, which always regard the entity 
 and not the individual as the subject. True domestic 
 co-ownership should not be understood in this manner, 
 which is a breach of individual rights, neither should 
 it be looked upon as a "communio pro indiviso" in 
 which the co-owner has an equal right to individual 
 ownership on the "pars pro indiviso," that is, where the 
 family is an unequal society with superiors and inferiors. 
 The inequality does not render co-ownership impossible, 
 but only makes the different members enjoy an unequal 
 property right. Domestic co-ownership is sui generis 
 and presupposes that important distinction between rela- 
 tive and absolute property originally conceived by Ros- 
 mini. It is founded on the full and absolute right of the 
 father, head, governor and representative of the family 
 and on the relative rights of its members, who have a right 
 conditioned upon the death of the father. Whoever, 
 teaches Rosmini, has a full property right in something 
 over which another person has a relative property right 
 can use and consume the thing to a definite and reason- 
 able extent. If there is co-ownership, which is an associa- 
 tion between him who has a full right and him who has a 
 relative right, the first must use it for the purposes of the
 
 FAMILY CO-OWNERSHIP 747 
 
 co-ownership and society. To the absolute owner, that 
 is, to the head, belongs the decision of what are necessary 
 or useful expenses of the family according to the norm of 
 a wise control. The nature of relative property being 
 what it is, and this right of property not being limited 
 except in relation to a full owner, it follows that he has a 
 right above all other persons to its use and control ; and 
 that upon the death of the full owner these goods become 
 his absolutely. From this, Rosmini goes on, comes the 
 right of the relative owners not to limit in the hands of 
 the full owner the use and consumption of goods gotten 
 or acquired by him, but to demand that they be so placed 
 that at the death of the full owner they can be distin- 
 guished so that he can succeed to all his property. With 
 this premise it is easy to overcome the beliefs and doc- 
 trines of those who wish to base intestacy on the necessity 
 of educating children, consent, benevolence, the presump- 
 tion of the will of the deceased , or occupancy. I f heredity 
 exists only in the necessity of educating the children, it 
 loses its own nature and becomes a simple pension estab- 
 lished for educational purposes, a pension which has no 
 reason for continued existence when it has attained its 
 end. The mere sentiment of benevolence is not of itself 
 a claim or right. The conception of a presumption of 
 will denies the right of the family and is the result of the 
 principle of individual caprice, express, tacit, or presumed, 
 and supposes a prior testamentary inheritance. The 
 theory of occupancy considers man as unattached and 
 vagrant, without any thought of the future. Man, accord- 
 ing to this way of looking at it, is a force which cannot be 
 effective after death. Such theory, besides, lays open the 
 way to general warfare, because everyone would enter 
 the struggle to occupy the inheritance and, what is 
 worse, the victory in this bitter struggle would not always 
 belong to the relations.
 
 748 INHERITANCE 
 
 499. Testacy is Founded on Ownership. If the im- 
 mediate foundation of intestacy rests on consanguinity 
 and domestic co-ownership, that of testamentary suc- 
 cession is based on the right of property; he who is 
 owner of something can dispose of it freely, saving al- 
 ways that he fulfills his duties. The right to will is in- 
 separable from ownership, from which it gets its reason 
 and intention. It has its deepest roots in the heart of 
 man, who is a social and collective subject, and responds 
 to the natural impulse by which everyone more or less 
 tends to prolong his memory in future generations. In 
 general, the right of inheritance connects the activity of 
 the person whose inheritance it is with that of those dear 
 to him who survive him. It represents the connecting 
 bonds of humanity in history. Without inheritance 
 history could not proceed, because the present is the 
 continuation of the past and the germ of the future. 
 Heredity is the indispensable condition for the mul- 
 tiplication of capital, the increase of production and 
 wealth, because it is clear that man would not have the 
 impulse to work and to subject himself to privations 
 and pain if he were not sure of being able to leave 
 his estate to his family and to dispose of his goods. 
 Neither do the facts that according to natural law 
 testamentary dispositions were not recognized, or that 
 the act takes place when the will of the testator is no 
 longer efficient through death, or that after death one 
 feels neither pain or injury, contradict this theory. 
 Those who believed that these facts show the theory 
 untenable hold that the statutes give an "actio violati 
 sepulcri ' ' and ' ' actio in j uriarum ' ' for a slandered memory , 
 through a sentiment of humanity for the insult to the 
 honor of the existing family. But in the first place, 
 the will of the testator is efficient at the moment when 
 he makes his disposition, since it is the will of a living
 
 FOUNDED ON OWNERSHIP 749 
 
 owner; and the volitive act of an individual in legal 
 form acquires a substance and a duration independent 
 of the life of the subject from whom it emanates. A 
 will is an act that stands by itself, differing from a con- 
 tract or gift. It is not a contract because the testator can 
 always revoke it, and a transference of goods revocable 
 at any time cannot be called an agreement. Nor can it 
 be a conditional contract because the conditions would be 
 potential and would lie entirely in the "si voluero ;" in other 
 words, the testator would transfer his goods to the heir on 
 condition that he wished to keep his promise. It is clear 
 that the actions for desecration of a grave and for defa- 
 mation are given for the purpose which we have noted 
 above ; but besides such objects there is another, the pro- 
 tection of the physical and moral inviolability of a man 
 that has continued a past and begun a future generation. 
 The tomb is the resting place of the human remains and 
 the home of the soul, of a will and a personality in de- 
 composition. A man's memory, reputation, and honor 
 constitute the projection of his existence, forming his 
 moral life, which continues beyond the tomb. The recog- 
 nition of such a life does not include necessarily the idea 
 of the immortality of the soul as a legal principle. The 
 moral life finds its existence in the estimation and honor 
 of the person; both continue in the memory and con- 
 sciousness of his survivors without need of recognizing 
 the immortality of the soul, on which Leibnitz and Ros- 
 mini found the testamentary right. The republic of the 
 souls, for these two philosophers, is not a chimera. 
 Admitting the immortality of the soul, it is incredible, 
 they say, that a soul after the loss of its body should 
 not still have some relation with other persons, which 
 binds it and gives it what is its natural due, the desire 
 for its last will to have weight with its fellow-beings. The 
 dead have rights not of themselves, but through those
 
 750 INHERITANCE 
 
 who hold them dear, and by those who take their inherit- 
 ance. "Heredes una cum defuncto persona reputantur," 
 the early Romans teach us. Now a spirit exercises its 
 rights most beneficially when in virtue of its desires the 
 surviving heirs enjoy the property left behind, which 
 enjoyment is a virtual exercise of its rights because 
 it is the effecting of its last will. If this will is not 
 observed, the exercise of its rights is denied, and it is 
 robbed of its property. There are some who have not 
 placed the true value on this beautiful and noble theory 
 of Leibnitz and Rosmini, because we must recognize 
 that legal relations and institutions should be derived 
 from principles of reason and not from religious beliefs. 
 For many, the immortality of the soul is not philo- 
 sophically demonstrable nor can it be considered as a 
 postulate of practical reason although accepted as an 
 object of faith.
 
 INTESTATE SUCCESSION 751 
 
 CHAPTER XXII 
 INTESTACY AND THE WILL 
 
 THE DEGREE AND QUALITY OF RELATIONSHIP. THE CAPAC- 
 ITY OF SUCCESSION. THE CLASSES OF HEIRS. REPRESENTA- 
 TION. CAPACITY TO MAKE A WILL OR TO RECEIVE THROUGH 
 A WILL. KINDS OF WILLS. INTESTACY. THE RIGHT OF REP- 
 RESENTATION AND TESTAMENTARY SUCCESSION. MISTAKES 
 IN THE UNDERLYING AND IMMEDIATE CAUSE. CONDITIONS. 
 THE RIGHT TO THE INCREASE. SUBSTITUTION AND TRUSTS. 
 PRINCIPLES COMMON TO ALL KINDS OF SUCCESSION. 
 
 500. Intestate Succession Follows the Degrees of Rela- 
 tionship. Intestacy is founded on the ties of blood and 
 should be regulated by the quality of relationship. Rela- 
 tionship is the bond existing between persons of the same 
 stock. Its degree is measured by the number of genera- 
 tions, each generation forming a degree. In quality of 
 relationship, first come descendants, then ancestors, and 
 lastly collaterals ; relations of a nearer degree exclude any 
 of a greater degree. These are principles of natural law 
 which Justinian recognized in regulating ascendinginherit- 
 ance, decreeing that the nearer ancestors, paternal and 
 maternal, should be preferred to the remote without re- 
 gard to the origin of the inheritance, and that only with 
 the ancestors of equal degree should the inheritance be 
 divided, a moiety going to the paternal and a moiety to 
 the maternal ancestors, regardless of their relative num- 
 bers. Modern legislatures have followed the Novella 
 and have thus sanctioned the precepts of natural reason. 
 
 501. Incapacities of Intestate Succession. Every- 
 body, as a general rule, has a right of inheritance. In
 
 752 INTESTACY AND THE WILL 
 
 our day, foreigner, monk, or prisoner for life can inherit 
 as they are no longer considered to have ceased to be per- 
 sons. A foreigner has civil rights which belong to him in 
 his quality of man; a monk, if a citizen, has civil and 
 political rights; a prisoner for life can be deprived 
 only of those rights which cannot be reconciled with his 
 condition. He no longer has political rights, nor the pat- 
 ria potestas, nor can he be appointed a guardian ; he will 
 be subject to a legal prohibition by which he cannot ad- 
 minister his own estate, but there is no reason for deny- 
 ing him the right of inheritance. And yet there are some 
 persons incapable of inheritance, though these are the 
 exception. The incapable properly so called are incap- 
 able in respect to any inheritance and can never acquire 
 property by succession. Some, incapable through crime, 
 are excluded, only inheriting from him against whom 
 they have committed the culpable act. 1 Those also are 
 incapable of inheritance who at the time of the vesting 
 of it are not yet conceived, as they have no existence. 
 Those who are conceived can take the inheritance when 
 they are born, by what we have said before. 2 Those are 
 incapable through crime who have murdered or tried to 
 murder the person from whom they would inherit, and 
 also those who have calumniously accused the deceased 
 of an infamous crime; and those who have hindered 
 him from making a will or have caused him to make one, 
 or have suppressed, altered, or changed any disposition 
 of it. Incapacity properly so called exists and acts of 
 itself; incapacity through crime presupposes a legal 
 conviction. 
 
 502. Four Kinds of Intestate Succession; Relations. 
 There are four classes of heirs ab intestato, legitimate 
 relations, natural relations, surviving husband or wife, 
 
 1 They lose the inheritance if they had acquired it. 
 2 C/. 180 ante.
 
 INTESTATE SUCCESSION 753 
 
 and the State. The first class is divided into three orders, 
 descendants, ancestors, and collaterals. Love of descend- 
 ants is the most intense and therefore there is no doubt 
 as to their inheritance. "Nullum dubium est quia omnia 
 quae nostra sunt liberis nostris ex voto paremus," says 
 the early Roman law. Children, therefore, whether 
 male or female, of any marriage should be preferred 
 above all other heirs. The descendants of children 
 come next, according to proximity of degree to the de- 
 ceased ; the quality of consanguinity should prevail over 
 the degree. The legitimated and the adopted children 
 who are in every way like the legitimate should be num- 
 bered among the latter. After the children come the an- 
 cestors, because "amor primum descendit deinde ascen- 
 dit." The parents take equal shares in an inheritance 
 from a son, since the son's affection for his father and 
 mother should be equal. If he dies leaving no father or 
 mother, the inheritance should belong to the nearest an- 
 cestor without distinction of lineage. The third order is 
 formed by the collaterals, all bound together by strict 
 bonds and constituting a family living under the same roof, 
 brought up and educated with equal care. If with the 
 parents are brothers and sisters of the whole blood, they 
 inherit equally. Half brothers and sisters cannot be ex- 
 cluded from participation because they are bound by 
 sufficiently strong affection to the descendant, but they 
 should take in smaller proportions than the brothers and 
 sisters of the whole blood, who are more closely bound 
 together. If brothers and sisters are the nearest surviv- 
 ors of the decedent they should be preferred to all others. 
 When there are no brothers and sisters, the descendants 
 should take by representation and succeed to the posi- 
 tions of their uncles and aunts, or if they are lacking, the 
 nearest relation. There is a point, however, where the 
 inheritance of collaterals stops because the consciousness
 
 754 INTESTACY AND THE WILL 
 
 of family unity and relationship fails. At this point the 
 State becomes the heir, as is reasonable, because rela- 
 tionship beyond a certain degree is not felt. 
 
 503. Natural Relatives in Intestacy. The second 
 class is formed of natural relatives. Children born out 
 of matrimony recognized voluntarily or through judi- 
 cial declaration can share in the inheritance of their 
 parents. And it is right that they should not be de- 
 prived of it, because they are more intimately and 
 deeply bound to the authors of their days than col- 
 laterals. On the other hand, the law cannot make the 
 position of natural children equal to that of the legiti- 
 mate children if it wishes to protect morality and to 
 preserve the true rational family. It is true that natural 
 children come into the world without any fault of ^heir 
 own; but this is no reason to treat them equally with 
 legitimate children though it should give them some right 
 to participate in the inheritance. 
 
 504. Husband and Wife under the Intestate Laws. 
 The surviving husband or wife represents the third kind 
 or class of heir even by natural law, because in matri- 
 mony there is that deep and full interpenetration of two 
 persons, often spoken of before, which cannot fail to be 
 sufficient title to make the surviving consort share in the 
 inheritance of the decedent. The survivor must not be 
 exposed to danger of poverty through the perversity of 
 heirs; his existence should not depend upon the pleasure 
 of the children and he should have a share not less than 
 theirs. The Roman "quarta uxoria" does not conform to 
 this conception since it is given only to the poor and un- 
 dowered wife who must undergo the humiliation of prov- 
 ing her own need in order to obtain the hereditary alms. If 
 the right of succession belongs to the surviving consort, 
 provision must be made that the estate of one family 
 should not enter another through a second marriage.
 
 TRANSMISSION 755 
 
 The statute should distinguish in the protection given to 
 the surviving consort when these are their children and 
 when there are only distant and remote relations. 
 
 505. The State is the Ultimate Heir. The fourth 
 class of heir is the State. The estate of a decedent 
 who has not any relatives must be regarded as vacant, 
 and therefore belong to the State. It is right that 
 the goods should devolve to the State, for no one 
 beyond the degrees of consanguinity that have ethical 
 weight should inherit by the intestate laws. The 
 county with which the individual is connected by 
 closer ties would not be an irrational beneficiary which 
 could use it for works of beneficence, possibly in his name. 
 
 506. Transmission; Succession per Stirpes and per 
 Capita. If, in intestacy, those first entitled are lacking 
 or are incapable of inheriting, their descendants take 
 their place and rights, not of themselves but by represen- 
 tation. They inherit of their own right when they have 
 a right of immediate inheritance by the statutes. By 
 transmission (transmitio) the heir of him takes in whose 
 favor the inheritance first lay, and who died without hav- 
 ing tacitly or expressly accepted it or without having 
 renounced it. Succession by representation is im- 
 mediate, and that by transmission is mediate, because 
 in the first the inheritance has not devolved to him who 
 has died or been declared incapable, and in the second 
 the "delatio heretatis" has happened in favor of him 
 who takes by transmission. They inherit per capita 
 who are of the same degree and participate in the inheri- 
 tance in equal parts; the others who are substituted 
 in the place of another inherit per stirpes. The represen- 
 tatives take what would have belonged to the man whom 
 they represent and divide it among themselves or accord- 
 ing to their branches, all per stripes. Representation has 
 a natural reason because the affection is constant and the
 
 756 INTESTACY AND THE WILL 
 
 love of ancestors intense towards their descendants both 
 of the second and greater degrees, and because the chil- 
 dren as members of the family and clothed with family 
 rights, among which is that of inheriting the estate of 
 their parents, are put in their place. It is not equitable 
 to make the misfortune for a son in the death of his father 
 greater by depriving him of his inheritance from his grand- 
 father or uncle. Neither is it right to inflict the effects 
 of incapacity upon innocent individuals because "peccata 
 suos teneant auctores." Representation, therefore, con- 
 forms to the principles of the family and of equity and 
 cannot be reduced to a mere invention of civil law, since 
 it is a derivative of ties of blood. Its reasons are found in 
 the direct line of descent indefinitely and in the collateral 
 lines up to a certain point. Representation among the 
 descendants of brothers and sisters of the decedent can 
 be admitted because the children of a brother or sister 
 are considered part of the family to which he or she be- 
 longs. The nephew considers his uncle almost like a 
 father and the uncle feels a semi-paternal love for his 
 nephew. Further the reason for representation does 
 not go. It is not at all possible among ancestors, since 
 love descends and does not ascend ; a stream never flows 
 to its source; the ancestor is always the head of the 
 family of descendants. It is a matter of general belief 
 that the inheritance from distant descendants cannot 
 take place immediately; but the son of a man who has 
 renounced the inheritance from his father inherits from 
 his grandfather by his own right, being the nearest 
 cognate. 
 
 507. Testamentary Succession. Coming now to 
 testamentary succession, we must remember that every- 
 body is capable of making a will or of taking through 
 a will except certain persons determined by law. The 
 same principle is applied here as in the case of intestate
 
 TESTAMENTARY SUCCESSION 757 
 
 succession, because inheritance is a natural right. They 
 clearly are incapable of making a will who through 
 immaturity have not fullness of judgment, and those 
 not of sane mind. The testator who has become blind 
 with anger against his legal heirs can be considered 
 not of sane mind and they will have, therefore, an 
 action "ab irato" ; neither can a will be made under in- 
 fluence of violence, trickery or duress. Fraud has two 
 forms, - undue influence and deceit. Undue influence 
 consistsin gifts, demonstrations of affection generallysim- 
 ulated, services, complacency, and prayers, with the object 
 of winning liberality. Deceit that differs from illicit per- 
 suasion is accompanied by a series of acts intended to 
 surprise the mind of the testator, inspiring in him a dis- 
 position different from what he really has, as if a reply 
 were suggested to an equivocal question contrary to the 
 understanding of the testator. Then those who are not 
 conceived and those that are guilty of crime are incapable 
 of inheriting. But the law of testamentary inheritance 
 can admit the children of a person living at the time of the 
 testator's death to the inheritance although they are not 
 conceived. In doing this it does not make a precept con- 
 trary to the dictates of reason, because it allows the testa- 
 tor to benefit the children of a dissipated person and does 
 not tie up the inheritance for a long time. There are 
 those who are incapable of inheriting from certain per- 
 sons, as the executor before the approval of his account, 
 the notary, the witness to his will, and he who has writ- 
 ten a secret will in which there is no approval of the leg- 
 acy in the handwriting of the testator. For other persons 
 there is a partial relative incapacity. They cannot 
 receive more than a definite fraction from certain 
 descendants. For example, it is not permissible to 
 leave children born out of matrimony, even if recog- 
 nized, more than the proportion established by law.
 
 758 INTESTACY AND THE WILL 
 
 A widower who marries again cannot leave to his second 
 wife a greater proportion then he leaves to the children 
 of the first. 
 
 508. Forms of Ordinary Wills. There are ordinary 
 and special wills: the ordinary are of two kinds, one the 
 holograph, written throughout, dated and subscribed 
 by the hand of the testator, and the other by notarial 
 act. A holographic will separates the testator from 
 every foreign influence and gives him full freedom of 
 providing for his inheritance without the dangers of an 
 anticipated publicity. It presents, however, some in- 
 conveniences because it is uncontrolled by any kind 
 of legal form and remains essentially a private act. It 
 is evident that the legislature should not hinder the free 
 expression of the will of a disponer by many and grave 
 formalities, but it must insist upon some to establish the 
 certainty and the freedom of testamentary dispositions. 
 In our day the art of forgery is well developed, and hand- 
 writings are difficult to prove. And the opportunities of 
 forging a will are many when there is no necessity of 
 depositing it with a public official. Let us, therefore, 
 preserve the holographic will, but impose an obligation 
 of filing or recording. It is necessary in general to 
 lessen the formalities in cases of plague, or voyages, wars, 
 and residence abroad. To these requirements the laws 
 regulating special wills are made to conform. 
 
 509. Coexisting Testacy and Intestacy; The Reserve. 1 
 In Roman legislation the principle, "Nemo pro parte 
 testatus pro parte intestatus decedere potest," was 
 strong. The reasons for this principle were two, the 
 desire to avoid division of the "sacra privata" and the 
 supposed impossibility of the division of the "universum 
 jus defuncti." The first reason has fallen into the realm 
 
 1 The reserve is the portion which by Continental law the testator is 
 not allowed to will, but which is governed by the intestate laws. J. L.
 
 THE RESERVE 759 
 
 of history ; the second is founded on a conception foreign 
 to the "universum jus" because it is not dismembered 
 but remains one in the multiplicity of individual repre- 
 sentatives, successors of a common identity who con- 
 tinue the personality of the decedent in this world. 
 Intestacy and testacy can therefore coexist. And their 
 coexistence is essentially necessary since it can be shown 
 that intestacy alone would absorb the whole right of 
 the individual and testacy alone would deny the right 
 of the family. The wisdom of centuries has found har- 
 mony in the coexistence of the two kinds of inheritance, 
 in the division of the estate of the "de cujus" into a 
 devisable part and a reserve. This system conforms 
 to reason because it sacrifices the right neither of the 
 family nor the individual, but pays them equal regard. 
 There is no doubt that the foundation of the reserve 
 lies in the "jura sanguinis," in the right of the family. 
 It is enjoyed by the heirs, but at the same time its 
 preservation is of general interest since it looks to the 
 hereditary transmission of goods, a powerful means for 
 the preservation of the family and therefore of civil 
 society. It is not a derivative of the obligation to supply 
 necessaries because it cannot be reduced to a simple 
 pension, neither is it an offshoot of the civil and legal con- 
 version of natural duties of parents, because if so con- 
 ceived it would be able to take the same position as the 
 right of a creditor and be at the absolute disposal of the 
 legislator. The reserve brings into existence the prin- 
 ciple of domestic co-ownership. It is the quota of the 
 inheritance due by law and inviolable. The reserve 
 as a quota of the inheritance cannot be demanded or 
 renounced during the life of the "de cujus." It can be of 
 any kind, personal or real, or consist of choses in action, 
 existing at the date of the vesting of the inheritance. 
 It entails an obligation for the payment of debts. Since
 
 760 INTESTACY AND THE WILL 
 
 the reserve is ordered by law, it protects the family rights 
 and it follows that the heir who takes under the will can 
 claim besides his legacy a right to the reserve itself, of 
 which he cannot be deprived even by the testator. Dis- 
 inheritance (allowed by Roman law before and after Jus- 
 tinian and by many modern civil laws) allows the 
 testator to follow any unreasonable caprice and is not 
 necessary when the "hereditas" can be lost through 
 unworthiness. Causes of unworthiness can be sufficiently 
 increased to allow the complete abolishment of disinheri- 
 tance. And it is necessary, therefore, to consider as un- 
 worthy those who are guilty of insults, maltreatment, or 
 injury towards the "de cujus." The reserve, founded 
 on the substantial right of the family and established by 
 law, is inviolable, whence it belongs in property and 
 possession to the heir and is not subject to conditions, 
 terms, or burdens. 
 
 510. The Criticism of the Reserve. 1 The institution 
 of the reserve, not recognized by the common law, 
 has been the subject of much criticism and discussion 
 among jurists and economists. It has been said, for 
 example, that a father has no obligation to leave his 
 children a part of his property, but is only bound to 
 give them a good education; that the idea of domestic 
 co-ownership is aristocratic and feudal; and that the 
 centre of modern society is the individual. This objec- 
 tion should have no weight because it confuses the sub- 
 stance with the method. Co-ownership is the intrinsic 
 ideal of the intimate communion of the family; it has 
 acquired different forms because the family itself has 
 passed through many phases. Should we perhaps destroy 
 property and family because they had at one time a 
 feudal character? It is not true that the centre of modern 
 society is the individual. The affirmation of that means 
 
 l Cf. 509, n. 1, ante.
 
 CRITICISM OF THE RESERVE 761 
 
 falling into individualism, where every man is considered 
 as an abstract entity, as an atom, and not in relation to 
 his diverse qualities and positions in the family, bodies 
 corporate, and the State. It is said that the children may 
 have special resources; that is no reason for depriving 
 them of their rights. It can be said further that the chil- 
 dren may be unworthy, without reflection that either their 
 unworthiness is great and then the law will exclude them 
 from the inheritance, or else it is small and then it is not 
 right to deny them their reserve because a father will 
 always be able to reward or punish them with the part at 
 his disposition. For this part can serve to equalize the 
 conditions of the children when some are not able to help 
 themselves by their own intelligence and activity. The 
 accusation of producing inertia among the heirs has been 
 brought against the reserve but following this to its logi- 
 cal conclusion we could decide that in order to increase 
 individual activity we should dispossess them by taxa- 
 tion because in this way we would make them more active. 
 Not enough regard is given to the fact that this reserve 
 fund may be the first capital to work with and that it 
 is much more difficult to get together the first few pen- 
 nies than to acquire the second quarter of a million. Fi- 
 nally, the reserve is accused of dividing the estate. But 
 it has been observed that the condition of property is good 
 because it produces an equality and independence con- 
 ferring on many, means suitable to sustain life, and makes 
 labor possible by the application of capital to industry. 
 It is, therefore, a guarantee of order ; it increases love of 
 country, since it attaches the owner to the soil. Divi- 
 sion of property is an evil only when it breaks it up into 
 petty values. This evil can be guarded against in many 
 ways. In conclusion, the reserve has the merit of pre- 
 serving the family from thoughtless liberality and of 
 dividing the property and capital. It impedes, if but
 
 762 INTESTACY AND THE WILL 
 
 slightly, the increase of population in the aristocratic 
 classes which are generally incapable of giving work 
 to society in any considerable quantity or quality, as 
 the economist, Rossi, a champion of the reserve, has 
 said, whose authority can well be opposed to that of 
 Stuart Mill, the champion of unlimited testamentary 
 power. 
 
 511. Extent of the Reserve. 1 The reserve belongs 
 to the legitimated and adopted children and their 
 descendants, as they enjoy all the rights of the 
 family. Adoption makes the adopted son the equal 
 of the legitimate but a personal relation always differ- 
 entiates them. Grandchildren and descendants come 
 in by the right of representation. If the testator does 
 not leave children or descendants the reserve belongs 
 to the ancestors who are debtors of their descendants 
 to the amount of the reserve. There is here a recip- 
 rocal obligation of true natural law. To the wife 
 and natural son a reserve is given by the principles 
 of justice. It is not always considered as a quota 
 of the inheritance since an effort is made to favor 
 children, ancestors, and in general the legitimate 
 family. In fact, the law sometimes prescribes that the 
 portion belonging to the wife can be satisfied by the 
 heirs through a life estate or an assignment of interest, and 
 that due a natural son can be paid off in money. The 
 law establishes a determinate portion for a widow and 
 natural son if taken from the portion which can be willed, 
 in order not to prejudice the stronger title to the intes- 
 tate part, which is the right of the descendants and ances- 
 tors. The reserve for collaterals is not possible when the 
 system of private and acquired goods is destroyed which 
 tends to the destruction of the family estate. The devel- 
 opment of industry and commerce and the knowledge of 
 
 l Cf. 509, n. I, ante.
 
 EXTENT OF THE RESERVE 763 
 
 the effective limits of the family understood in a particu- 
 lar sense have destroyed the last vestige of the mediaeval 
 system, unknown to the Romans. A collateral reserve 
 is not based on the philosophy of law because the brothers 
 and sisters are centres of other families, neither is it based 
 on social interest which does not need a limitation of the 
 testamentary power through the enjoyment of a modern 
 reserve by the brothers and sisters. If the testator wishes 
 to benefit either of these he can very easily do it. We can 
 note that these persons per se had no right of inheri- 
 tance in Roman law. To fix the measure of the reserve 
 rationally, it is necessary to take into consideration both 
 the degree and kind of relationship and the economic 
 situation of the family. To harmonize the economic 
 situation and principles of justice, it is necessary that 
 the reserve be neither too little nor too great. If it is 
 too little, it will not be a reserve but rather a pension 
 for necessaries and would lead to the same evils as 
 unlimited testamentary powei. If it is too large, it will 
 absorb the right of individual property. The right of the 
 family must be balanced with the right of individual. 
 The system of absolute proportionality between the re- 
 serve and the number of heirs, which was adopted at the 
 time of the French Revolution, absorbs the testamentary 
 power ; the other of the limited proportionality accepted 
 by Justinian and the French Code is unjust and often 
 ineffective. It does not always attain its object, because 
 the ratio should be stopped at a certain point unless one 
 wishes to destroy testamentary power; and by stopping 
 it one decrees an equal portion for five children as for 
 eight or ten. Besides it is not just because it limits 
 capriciously the right of the individual owner and dis- 
 poser. It can be noted that such a system renders the 
 inheritance of the estate uncertain in case of the surviv- 
 orship of the children. The system of the invariable
 
 764 INTESTACY AND THE WILL 
 
 quota, whatever the number of heirs, followed by the 
 Custom of Paris, by the Code Napoleon and the Italian 
 Code, seems preferable because it considers equally the 
 two contradictory rights and takes account of economic 
 factors in a general way. In the most cases, the num- 
 ber of the descendants to inherit is greater than the 
 number of ancestors (and descendants are more fre- 
 quently heirs) ; the quota, therefore, reserved for de- 
 scendants should be greater than for ancestors. It is 
 true that the result of this system is that the intestate 
 inheritance is very small if there are many children. 
 But it is impossible to hope to conform to the indefinite 
 variety of economic needs in all the combinations of life. 
 The law should consider what ordinarily happens, "id 
 quod plerumque accidit." When a reserve is allowed it is 
 evident that the acts of liberality inter vivos or by the will 
 should be reduced if they exceed the disposable part. 
 Above all the legacies should be reduced proportionally 
 among "haeredes" and then the legatees; if that is not 
 enough the "donationes" should be disregarded, proceed- 
 ing from the last to the first. The legacies should be re- 
 duced first because they are acts and not contracts as the 
 "donationes" ; the last gift goes first because this is often 
 enough to supply the reserve. The testator has always 
 the power of foreseeing the possibility of a reduction and 
 of giving a preference to a legacy or gift. 
 
 512. No Representation in Testamentary Succession. 
 The question arises if the right of representation is 
 applicable to testamentary succession. After serious 
 reflection on this subject it does not seem to be regularly 
 applicable because in testamentary succession the rea- 
 sons on which the right of representation is based are 
 lacking; there is a mediate transference of estate. Often 
 the legatee is no relation to the testator and therefore 
 ties of blood, domestic equity, principles of family life
 
 NO REPRESENTATION 765 
 
 should not be relied on. The affection of the testator is 
 directed to the person to whom the realty or personalty 
 is given if he is a stranger and does not extend to his de- 
 scendants. In other words, the descendants of a legatee 
 obtain the realty or personalty by transmission and not 
 by representation presupposing a "delatio hereditatis" or 
 transfer of the right in favor of the legatee, and do not 
 immediately come into the inheritance by act of law as 
 happens in the case of representation. A representative 
 is placed in the position and given the rights of the man 
 he represents by the virtue of the law without the neces- 
 sity of the devolution of the inheritance in his favor. 
 This is in force in inheritance ab intestato. A testamen- 
 tary inheritance, on the contrary, depends directly on 
 the will of the testator and does not come into the power 
 of the legatee unless by possession. It cannot as a rule pass 
 to the descendants of the heir without "delatio;" there- 
 fore their inheritance is mediate and transmissive. The 
 effects of transmission are different from those of repre- 
 sentation, because the descend ants of an "hseres" take the 
 inheritance as representatives and do not exclude the co- 
 heir or substituted heir and would not hinder the right 
 of accrual. But descendants taking by transmission 
 would exclude the co-heir and the substituted heir, and 
 would prevent the right. But sometimes a legatee is 
 bound to the testator as a descendant, brother, or sister. 
 In such a case the same reasons for representation as in 
 intestacy are found, because the descendants of the lega- 
 tee are in respect to the testator in that line or degree of 
 relationship in which there would have been representa- 
 tion if it were a question of inheritance ab intestato. If 
 the legatee is predeceased or unworthy, his descendants 
 will receive the inheritance by a right analogous to that 
 of representation in intestacy, which is considered as a 
 kind of tacit or legal surrogation not extended to the de-
 
 766 INTESTACY AND THE WILL 
 
 scendants of legatees in general, as is easily understood, 
 because it is based on the ties of blood. It was different 
 under Theodosian transmission introduced into Roman 
 law by a law of Theodosius the Second and Valentinian : 
 "Filios seu filias, nepotes aut neptes, pronepotes vel pro- 
 neptes a patre vel matre, avo vel avia, proavo vel proavia 
 scriptos heredes, licet non sint invicem substituti, seu cum 
 extraneis, seu soli sint instituti, et ante apertas tabulas 
 defunctis (sive se noverint scriptos heredes, sive ignora- 
 verint), in liberos suos cuiuscumque sint sexus vel gradus, 
 derelictam sibi hereditariam portionem posse trans- 
 mittere, memoratasque personas (si tamen hereditatem 
 non recusant) nulla huiusmodi prsescriptione sibi ob- 
 stante, earn tamquam debitam vindicare. Quod scilicet 
 etiam super legatis, seu fideicommissis a patre vel 
 matre, avo vel avia, proavo vel proavia derelictis locum 
 habet." Justinian confirmed the Theodosian trans- 
 mission but it was very different from representation 
 because it supposed that the legatee should die before 
 the reading of the will and not before the death of 
 the testator. It was, therefore, a true case of transmis- 
 sion and not of representation. The Italian Code holds 
 with the above enunciated principle that the descendants 
 of a predeceased or incapable legatee will be given the 
 inheritance or legacy in cases in which representation 
 in their favor would have been lost, if it were a case of 
 intestacy, unless the testator has otherwise disposed of it; 
 provided that it is a question of a legacy of rent or a 
 right of a personal nature. 
 
 513. Requisites of Wills. There are many more 
 things to note about the disposable part of an estate. 
 In the first place, a legatee may be designated in any 
 manner whatsoever, the only requisite being that he 
 should not be so uncertain as not to be determinable. 
 Every disposition of the testator must be certain and
 
 ATTRIBUTES OF WILLS 767 
 
 original, that is, not dependent on the will of a third 
 party. In the second place, an error in respect to the 
 underlying cause of the will cannot have the same 
 effect as one that refers to the immediate cause. The 
 first renders the will invalid because the testator would 
 not have made that disposition if he had known of a fact, 
 for example, the existence of an only son whom he be- 
 lieved dead. The second has not an annulling effect 
 because the impulsive cause is accessory and not determin- 
 ing ; the will to dispose is followed with the impulse taken 
 away. A legacy given to one of the children of a father 
 in consideration of a numerous offspring holds good even 
 if at the moment of the testator's death the number of 
 children has been much reduced. In the third place, it 
 is necessary to notice that the testator can impose bur- 
 dens upon the legatee, or if he has left it sub modo he can 
 impose conditions. Conditions can be of as many kinds 
 as those in contract. The Romans taught that immoral, 
 impossible, and illegal conditions in a will "vitianturet 
 non vitiant" because they were looked upon as the effects 
 of mental weakness which should not make innocent third 
 parties suffer who had not consented to them. But the 
 Roman doctrine, received by some codes, should not be 
 followed, because mental disturbance destroys the will. 
 If the testator knows what he is doing he cannot be ig- 
 norant of the fact that the fulfillment of the above kind 
 of condition is contrary to nature and law, and therefore 
 it is logical to infer that he has not true desire to leave 
 his substance to the legatee. The validity or invalidity 
 of the legacy depends less upon the regard which the heirs 
 merit than upon the state of mind of the testator at the 
 moment in which he makes his will. Conditions which 
 prevent a marriage are considered contrary to the principle 
 of freedom but the "conditio viduitatis" is not, it being 
 inequitable that the wife should violate the faithfulness
 
 768 INTESTACY AND THE WILL 
 
 which her deceased husband wished kept by contract- 
 ing a second marriage, and still profit by his generosity. 
 It is true that the survivor can live an immoral life 
 without losing the legacy. But this cannot be helped 
 because the deceased has trusted to morality the faithful- 
 ness of the survivor. The recognition of the above con- 
 dition is bound up with the desire to favor the interest 
 of the children. In the fourth place, we must mention 
 the right of accrual and substitution. The right of 
 contribution is the right by which the portion of a legatee 
 who cannot take his legacy devolves upon the co-heirs 
 named jointly in a single clause of the same will without 
 distribution. It must be presumed that the legatees 
 named this way are considered by the testator as a single 
 person, and therefore if one fails his part should go to the 
 profit of the others. If the legatees are given unequal 
 parts the presumption ceases and the part which fails 
 falls into the intestate estate. Whoever has full right of 
 disposal of part of the goods not reserved can name an 
 heir or legatee in the second degree, that is, to take upon 
 the failure of the legatee of the first degree. This is sub- 
 stitution which can be direct or indirect. Direct substi- 
 tution is that by virtue of which the substitute inherits 
 directly from the decedent. Simple substitution is of 
 this kind because it is for relatives made by the testator 
 in the second or greater grades in case the heir of the pre- 
 ceding grade does not take the inheritance. Simple sub- 
 stitution is called reciprocal when testamentary co-heirs 
 are substituted one in place of the other. Anotherexample 
 of direct substitution would be the "pupillare" of the 
 Roman law, which takes place when a father appoints an 
 heir in place of a son who may die a minor. Of the two 
 direct substitutions, the simple conforms to reason be- 
 cause the right of disposition of the testator is not exer- 
 cised in a manner to bind the property. On the other
 
 ATTRIBUTES OF WILLS 769 
 
 hand, the testator has the right to an actual heir chosen 
 by him and can provide for the case in which the first 
 named does not wish or cannot take. The Roman pupil- 
 lary substitution is no longer admissible because it is the 
 consequence of the patria potestas which no longer exists, 
 by which the will of the father took the place of the will 
 of a minor son in making final disposition of his property. 
 Indirect and uncertain substitution is the "fidei commis- 
 sus," dependent upon the obligation of reserving or 
 restoring some part of the inheritance or all of it to a 
 third person. This kind of substitution is no longer 
 recognized because it is the effect of the unreasonable 
 caprice of an old man with one foot in the grave and 
 ties up the commerciability of the legacy. We must 
 not confuse this kind of substitution with a trust estate 
 which exists where someone is made heir with the 
 secret agreement of being only an administrator or 
 bailee of the inheritance until it can be restored to the 
 legatee. Fideicommissary substitution is patently ac- 
 companied by the burden of preserving and restoring 
 and prevents the alienation of the goods, but the legatee 
 can enjoy them, while a trustee can keep nothing, and 
 must return the inheritance with the interest. To-day, 
 testamentary trusts are recognized, but the Italian Civil 
 Code forbids the proof of a trust in order to avoid 
 many difficulties except where the trust was employed 
 to aid a person incapable of inheritance. In that 
 case alone, one is allowed to prove that the legatee is 
 a trustee. The making of a legatee by a certain day 
 or until a certain day is not permissible, since it is 
 trust. For if a legatee is only appointed after a given 
 day, the heir at law will inherit from the testator with 
 the duty to preserve and restore, and if the legatee 
 is appointed from a certain day the heir-at-law will 
 have to restore the inheritance to the estate or to
 
 770 INTESTACY AND THE WILL 
 
 the subsequent legatee. Finally we must mention a 
 few dispositions under particular bequests and trusts. 
 A trust is a disposition under a particular clause by 
 which the testator imposes an obligation in favor of a 
 third person. It is logical that the testator to make a 
 trust should have the faculty of disposing or willing. The 
 trustee on his side must have the capacity of receiving 
 by will because the legacy is a part of the inheritance. 
 Any legatee can be burdened by a trustee's duties, even 
 an "haeres," as well as legatees and adopted or substituted 
 "haeredes." You must note that on the reserve no bur- 
 dens, conditions, or obligations can be thrown because 
 it is the part consecrated to the family by statute. 
 Everything can be willed which is in the trade of the 
 legatee or can be useful to him. Things not in the 
 trade of the testator or for the legatee but in the trade 
 of the beneficiary can be willed. Existing things, future, 
 realty, personalty, particular objects, titles to rights 
 and corporeal and incorporeal objects are the subject 
 of trusts. 
 
 514. The Vesting of a Legacy. The common prin- 
 ciples of every kind of inheritance refer to vesting, 
 devolution, acceptance, refusal, the division of the in- 
 heritance, and to collation. 1 The inheritance vests at 
 the death of the testator or the person from whom the 
 inheritance comes. Inheritance from a living man is 
 not possible because whoever is alive has and exercises 
 as pleases him the right of property. The vesting of the 
 inheritance makes the moment certain in which it begins 
 to exist and can devolve; and at that instant, therefore, 
 one should find conditions which make the heirs capable 
 of inheriting. The devolution, as conceived by the Ger- 
 man law and by the French and Italian Codes, is the pas- 
 sage of the inheritance into the power of the heirs, accom- 
 panied by the power of acceptance or refusal. They 
 
 l cf. 516 post.
 
 ACCEPTANCE OF A LEGACY 771 
 
 have full right from the moment of the vesting of the 
 inheritance, both in respect to property and possession. 
 This is the signification of the old German and French 
 motto, "the dead give to the living." We must observe 
 that the maxim would be true if the inheritance was 
 irref usable, if there still existed, as there did in Rome, 
 "heredes necessari" who inherited even "invito animo," 
 slaves, for example, or "heredes sui," who at first were 
 involuntary heirs as were the sons and descendants of 
 the deceased, so made by the patria potestas at the 
 moment of death. But these two kinds of heirs no 
 longer exist, because modern law only recognizes volun- 
 tary heirs out of respect for principles of individual 
 liberty. If an act of will is necessary for the renuncia- 
 tion of the inheritance, it would be logical and just to 
 demand for its acquisition the act of "aditio" established 
 by the Romans for "heredes voluntarii" or "extranei." 
 The modern conception of devolution is contradicted, 
 because the acquisition ipso jure is not in accord 
 with the contemporaneous existence of the faculty of 
 accepting or refusing; neither can it be reconciled with 
 the existence of unclaimed legacies. Acquisition is the 
 result of the exercise of such a faculty and cannot 
 logically come first. The three Roman principles, the 
 "acquisitio ipso jure" for the "heredes sui," the 
 "aditio" for strangers, and the judicial act for the 
 "bonorum possessor" form the base of the three existing 
 legislative systems existing in Europe to-day. The first 
 principle is followed by the French, Prussian, and 
 Italian law, the second by Saxon law, the third by the 
 Austrian Code. 
 
 515. Acceptance of a Legacy. The acceptance of 
 an inheritance can be simple or with an inventory. 
 The first is express, when one assumes the title and 
 quality of heir by an act, or tacit if the heir does some
 
 772 INTESTACY AND THE WILL 
 
 act that necessarily shows an intention of accepting 
 and which he would have no right to do except as heir ; 
 it is presumed, if by force of law and in consequence 
 of his acts he is retained as heir without the con- 
 trary being admissible or provable ; this happens where 
 one conceals the inheritance. The effect of accep- 
 tance pure and simple exists in the commingling of the 
 estate of the heir and that of the decedent and therefore 
 the heir is personally liable to the creditors of the decedent 
 "ultra vires hereditatis!' Acceptance with the benefit 
 of the inventory, always express, prevents the commin- 
 gling of the two estates. Therefore, the heir is obligated 
 to the creditors of the deceased only to the extent of his 
 inheritance. The renunciation must always be express 
 and never presumed. Both acceptance and renunciation 
 can be made during the life of the "de cujus" or when the 
 inheritance vests. An inheritance in common between 
 heirs can produce much inconvenience and many dis- 
 advantages but they can proceed amicably or legally to 
 a partition which is a declarative or specific setting 
 aside of their quota of a common inheritance. The 
 quota of each co-heir is certain in quality but uncertain 
 in quidity. With the division this uncertainty ceases 
 and each heir is held the single and immediate owner 
 of his part. 
 
 516. Collation. A collation is the restitution which 
 a descendant co-heir makes to the hereditary estate in 
 favor of brothers, sisters, and their descendants, of all 
 he has received from the deceased common ancestor 
 during his life as a direct or indirect gift. It is founded 
 on the presumed desire of the deceased ancestor not to 
 alter the equality among his descendants. It is reason- 
 able to suppose that the deceased ancestor would have 
 made his gifts under a title of set-off and with the intent 
 of obliging the donee to return all gifts to the hereditary
 
 THREE FACTORS IN INHERITANCE 773 
 
 fund. "Pater," say the Glossists, "non debet sua 
 inaequalitate ex pluribus filliis unum facere legitimum et 
 alium bastardum." From this we see that collation 
 takes place only in favor of descendent co-heirs and in 
 an inheritance from a common ancestor. Collation can 
 be actual or fictitious. It is actual when the very goods 
 to be returned are given back to the hereditary fund; 
 fictitious when the value of the goods is deducted from 
 the portion of the donee. 
 
 517. Three Factors in Inheritance. In inheritance 
 in general it is necessary to distinguish three elements, 
 the individual, the family, and society. Ownership 
 presumes these three factors and law should attribute to 
 each of them in inheritance what belongs to it. Law 
 must recognize the right of the owner, and the family 
 and social ties; two ties which give rise to two lights. 
 It must conform not only to the principles of reason 
 but to the conditions of time, place, and civilization.
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Abriss des Systems der Philoso- 
 phic des Rechts oder des 
 Naturrechts," by Krause, 
 239. 
 
 Acceptance ( 365), 574. 
 
 Accession ( 238), 397. 
 
 Adoption (485), 720. 
 
 history of ( 486), 722. 
 rational basis ( 487), 723. 
 
 Adoption and marriage ( 449), 
 672. 
 
 Adultery ( 473), 708. 
 
 Aguesseau, D', 743. 
 
 Ahrens, 98, 241, 289, 268, 269, 547, 
 553, 699, 728. 
 
 Albertus Magnus, 8, 276. 
 
 Alexander of Aphrodisiae, 14. 
 
 "Allgemeine Practische Philoso- 
 phic," by Herbart, 238. 
 
 Alteration ( 239), 398. 
 
 Amari, 108, 109, 110. 
 
 Anaxagoras, 1. 
 
 Ancestor worship ( 139^ 496), 
 124, 738. 
 
 Ancient Law, Modern researches 
 (40), 125. 
 
 "Ancient Law." by Maine, 301, 
 404. 
 
 Andreani, 608. 
 
 Anguilli, 91, 141, 142, 168. 
 
 Antichresis ( 337). 534. 
 
 Antichissima Sapienza degli Itali- 
 ani, Dell', by Vico, 41. 
 
 "Antiquarische Brief e," by Bac- 
 hofen, 636. 
 
 Anzaldo, 517. 
 
 Appropriation ( 237), 396. 
 
 Aquinas, 8, 134, 276. 
 
 Arabian philosophers, 8. 
 
 Arago, 468. 
 
 "Archiv fur Civilistische Peroxis," 
 by Windcheid, 578. 
 
 Ardigo, 265. 
 
 Aristarchus, 112. 
 
 Aristotle, the Stagirite, 2, 4, 8, 91, 
 96, 104, 108. 109, 112, 131. 
 150, 155, 160, 172, 181, 184, 
 191, 192, 198, 233, 240. 243. 
 248, 255, 276. 285, 286, 296, 
 306, 320, 401, 408, 516, 542, 
 554, 667, 716, 741. 
 
 "Armonie nelle Antiche Dottrine 
 Antropologiche e Morali 
 dell' India e della Grecia," 
 by Merlo, 123. 
 
 Arnold, 406. 
 
 Aryan language shows juristic ten- 
 dency (37), 122. 
 
 Aryan race is juristic ( 36), 120. 
 
 Aryan and Semitic races (34), 119. 
 their difference (35). 119. 
 
 Association, freedom of ( 4 1 0) , 6 1 2. 
 
 Association and associations 
 (404), 618. 
 
 Associations and corporations. See 
 corporations. 
 
 "Assunto Primo della Scienza del 
 Diritto Naturale," by Ro- 
 magnosi, 96. 
 
 Augustine, 7. 
 
 Augustus, 300. 
 
 Austin. 102. 307. 
 
 Averroes, 14, 28. 
 
 Bachofen. 406. 640, 684. 
 
 Bacon, Francis, 19. 56. 135. 136, 
 
 210. 
 
 Bacon, Roger, 11. 
 Bagehot, 122, 242. 258. 301, 354. 
 
 565. 
 
 Bahr, 578. 
 
 Bain, 106, 107, 158. 161. 167. 
 Bakunim, 501. 
 Balbi Marco, 470. 
 Baldo. 742. 
 Barbeyrac, 33. 
 Baron. 370, 375. 377. 
 Bartolus, 9, 742.
 
 776 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Bastiat, 109, 269, 345, 394, 497. 
 "Bau und Leben des Socialen Kor- 
 
 pers," by Schaffle, 258. 
 Bebel, 683, 684, 685, 687. 
 Beccaria, 61, 462, 470, 497. 
 Becquerel, 468. 
 "Begriff und Wesen der Sogenan- 
 
 ten Juristischen Personen," 
 
 by Zitelmann, 371. 
 Bekker. 366. 367. 
 Bellini, 22. 
 Belot, 419. 
 Bentham, 38, 102, 209, 214. 217, 
 
 219, 240, 246. 307, 386. 
 Bigot-Preameneu, 744. 
 Bills of exchange ( 411), 613. 
 Biology and economics. See Eco- 
 nomics. 
 Bluhme, 305. 
 
 Bluntschli. 287, 292, 370. 375. 
 Bodin, 17, 743. 
 Bohlau. 364. 
 Bohm-Bawerk, 284. 
 Bolze, 377. 
 Bonelli, 380. 
 Bonghi, 687, 698. 
 Bonifazio, Giovanni, 345. 
 Boussingault, 468. 
 Brinz, 366, 367. 
 Bruno, 15. 30. 134, 155. 177, 191, 
 
 213, 219, 246. 
 Bruns, 364, 539, 540, 542, 547, 
 
 548, 549. 
 
 Buckle, 253, 254, 258, 269. 
 Burke, 62. 
 
 Burlamaqui, 33, 742. 
 Burtagnolli, 406. 
 Butler, 38. 
 
 Berkeley, 27, 138, 175. 
 Berner, 330. 
 Beseler, 370, 375, 377. 
 "Besitz nach Oestreichischen 
 
 Rechts, Der," by Randa, 
 
 364. 
 "Besitzklagen des Romischen und 
 
 Heutigen Rechts," by Bruns, 
 
 539. 
 "Besitzwille, Der," by Ihering, 
 
 550. 
 Betrothals ( 452), 673. 
 
 Cabanas, 37. 
 
 Cairns. 395. 
 
 Callicles, 348. 
 
 " Cambiale, La, " by Marghieri, 624. 
 
 Campanella. 15, 158, 163, 171. 
 
 Capacities of the spirit, Qualitative 
 
 and quantitative distinc- 
 tion ( 176), 324. 
 Capital and labor, fundamentally 
 
 one ( 297), 480. 
 not antagonistic ( 314), 
 
 501. 
 
 Capuanus, 243. 
 "Carattere Formale del Principio 
 
 Etico, Sul," by Chiappelli, 
 
 231, 233. 
 Carle, 252. 
 Carneades, 108. 
 Carpozovius, 61. 
 Carrara. 335. 607. 
 Casaregis, 517. 
 "Caso di Socialismo di Stato, Un," 
 
 by Salandra, 628. 
 Causa ( 372). 582. 
 Causa sui, 183. 
 Cavagnari, 250. 
 Celsus, 276, 306. 
 
 Chance and statistics (83), 188. 
 Chance, Result of causality (81), 
 
 183. 
 Character ^ 80), 181. 
 
 definition of (82), 185. 
 Chaveau and Helie, 334. 
 Chiappelli, 130, 231, 233, 347. 
 Christian philosophy, 7. 
 Chrysippus, 132. 
 Cicero, 5, 94, 108, 131, 133, 134, 
 
 243, 244, 245, 276, 285, 296, 
 
 306,346,516,679,737,741. 
 "Cit6 Antique, La," by Cou- 
 
 langes. 407. 
 Clarus, 61. 
 "Coalizioni Industriali," by Del 
 
 Guidice, 489. 
 Cocceius, 34. 
 Cocchia, 391. 
 Codes ( 165), 311. 
 Cogito ergo sum, 19, 37. 
 Cognitatio abdita, 163, 171. 
 Collation ( 516), 772.
 
 INDEX 
 
 777 
 
 [The numbers refer to the pages.] 
 
 Collectivism. See property. 
 
 modern, based on economics 
 
 ( 313), 500. 
 "Commento alia Procedura Sarta," 
 
 Sciajola, 542. 
 
 "Commento Sistematico del Co- 
 dice di Procedura Civile," 
 by Viti, 546. 
 
 Communism. See Property. 
 Communism, result of difference 
 
 of classes (312) .499. 
 Marx presupposition untrue 
 
 (319), 510. 
 
 criticism of Marx ( 318), 507. 
 Communion of women, Modern 
 
 examples ( 426), 640. 
 proved by historic facts 
 
 (427), 641. 
 Comte, 27, 82, 91. 175, 262, 309, 
 
 320. 386. 681, 699. 
 "Concetto del Caso in Aristotle, 
 
 II," by Tocco, 184. 
 "Concetto del Diritto Positive," 
 
 by Filomusi-Guelfi. 297. 
 "Concetto del Diritto Secondo 
 Spinoza, II," by De Tullio, 
 213. 
 
 Condillac, 37, 158. 
 "Condizione della Donna nel Di- 
 ritto Italiano, La," by Criso- 
 cuolo, 683. 
 Confusion, 564. 
 Consciousness (66), 162. 
 Consideration (372), 582. 
 Constantine, 471, 475. 
 "Contemporary Socialism," by 
 
 Rae, 445. 
 Contract, confusion with status 
 
 ( 208), 359. 
 consideration (causa), ( 372), 
 
 582. 
 
 definition of ( 360), 567. 
 division of ( 374), 584. 
 division of, Trendelenburg 
 
 ( 375), 584. 
 division of Trendelenburg is 
 
 exhaustive ( 376), 586. 
 duty to keep ( 363), 570. 
 essentials of ( 264), 573. 
 ethical origin of ( 358), 563. 
 
 Contract (continued) . 
 
 freedom of, not absolute 
 
 ( 379), 591. 
 freedom of, not license ( 377), 
 
 588. 
 
 freedom of, should be pro- 
 tected by law ( 378), 589. 
 history of ( 361), 568. 
 historical phases of ( 362) 
 
 569. 
 
 interpretation of ( 373), 583. 
 must be possible ( 371), 581. 
 of labor, economic duress 
 
 ( 380), 591. 
 the meeting of the minds 
 
 ( 368), 577. 
 
 void and voidable ( 369), 579. 
 "Contrat Social, Le," by Rous- 
 seau. 213. 
 Corporation, an organism ( 220), 
 
 372. 
 Corporations. See Incorporeal 
 
 Persons. 
 Corporations and associations 
 
 ( 223), 376. 
 "Corso Moderna di Filosofia del 
 
 Diritto," by Cavagnari, 250. 
 "Coscienza, Volonta, e Liberta," 
 
 by Masci. 164. 
 Cosmic evolution, The doctrine of 
 
 ( 53). 141. 
 Coulanges, 407. 
 Cournot, 191. 
 
 " Cours de Droit Naturel ou Philoso- 
 phic der Droit," by Ahrens, 
 
 239. 
 
 Cousin, 158, 384. 
 "Coutumes des Sauvages Ameri- 
 
 canes, Les," by Lafitau, 636. 
 Coviello, 531. 
 Crescenzio, De, 547. 
 Criscuolo, 683. 
 "Criticadi una Scienza della Legis- 
 
 lazione Comparata," by 
 
 Amari, 108. 
 
 "Ctetics," by Aristotle, 276, 401. 
 "Cursus des Institutionen," by 
 
 Puchta, 406. 
 Curtius, 166. 
 Custom, Primitive and general 
 
 ( 158), 301.
 
 778 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Custom (continued) . 
 
 disappears under statutes 
 
 ( 159), 303. 
 first source of positive law 
 
 ( 157), 300. 
 
 Dankwardt, 284. 
 
 Dante. 9. 134, 240, 285, 713. 
 
 Darwin, 68, 148. 149, 152, 240, 
 279, 
 
 "Data of Ethics, The," by Spen- 
 cer, 220, 226. 
 
 "Debtor, Death of, 566. 
 
 "De Give," by Hobbes, 210. 
 
 De Felice. See Felice. 
 
 "De Jure Naturae et Gentium," 
 by Puffendorf, 246. 
 
 De Maistre. See Maistre. 
 
 "De Natura Rerum," by Lucre- 
 tius, 637. 
 
 "De Officio Hominis et Civis," by 
 Puffendorf, 246. 
 
 DeTullio. SeeTullio. 
 
 "De Universi Juris Principio et 
 Fine Uno," by Vico, 94. 
 
 DelGiudice. See Giudice. 
 
 Delphic Oracle, 285. 
 
 Demelius, 366. 
 
 Democritus, 1. 
 
 Descartes, 18, 28, 163. 
 
 Desire (78), 179. 
 
 Destruction, 564. 
 
 Dicearchus, 109. 
 
 "Diceosina," by Genovesi, 50, 358. 
 
 Diderot, 518. 
 
 Digest, 208, 742. 
 
 "Dignita della Republica," by 
 Vida, 345. 
 
 Diodorus Siculus, 408, 409, 642. 
 
 "Diritto del Ritenzione, II," by 
 Guarracino. 537. 
 
 "Diritti dell' Uomo, I," by 
 Spedalieri, 358. 
 
 "Diritto di Proprieta nella Dot- 
 trina di Kant," by Tullio, 
 387. 
 
 "Diritto Naturale," by Ulrici, 240. 
 
 "Diritto Universale," by Vico, 41. 
 
 "Dissertations on Early Law and 
 Customs," by Sumner 
 Maine, 125, 208, 657. 
 
 "Di Una Nuova Teorica della 
 Personalita Giuridica," by 
 Bonelli, 380. 
 Divorce ( 469), 699. 
 
 and the Catholic Church, his- 
 tory of ( 472), 706. 
 by consent ( 475), 710. 
 causes for, adultery ( 473), 
 
 708. 
 
 excesses, cruelties and in- 
 dignities ( 474), 709. 
 a necessity (470), 701. 
 evils of (471), 704. 
 precautions ( 476), 711. 
 "Doctrina Pandectarum," by 
 
 Mtihlenbruch, 547. 
 Donnellus, 305. 
 
 "Dottrina delle Persone Giuridiche, 
 o Corpi Morali, La," by 
 Giorgi, 375. 
 
 Dos, history of ( 465), 693. 
 Dowry (dos), history of ( 465), 
 
 693. 
 
 Drobisch, 160, 189, 190. 
 "Due Matrimonii, I," by Gabba, 
 
 677. 
 
 Dueling ( 186). 334. 
 Dunoyer, 478. 
 DunsScotus, 11. 
 Duress ( 367), 577. 
 
 extent of ( 370), 580. 
 Duties, correlation of rights and 
 
 ( 193), 341. 
 
 relative and absolute rights 
 ( 173), 322. 
 
 Eckstein, D', 636. 
 "Economia Pubblica e delle sue 
 Attinenze colla Morale e con 
 il Diritto, Dell'," by Min- 
 ghetti, 284. 
 
 Economic duress ( 380), 591. 
 Economics, condition not cause of 
 
 society ( 146), 282. 
 biological (143), 276. 
 have ethical content ( 141), 
 
 272. 
 
 historical ( 145), 281. 
 were considered without ethi- 
 cal content ( 140), 271.
 
 INDEX 
 
 779 
 
 [The numbers refer to the pages.] 
 
 Economics (continued) . 
 
 the beginning of the study of 
 
 ( 136), 267. 
 
 Ahrens's theory of ( 138) , 269. 
 early German philosophers of, 
 
 are forgotten ( 137), 268. 
 Hegel's theory of ( 139), 269. 
 and biology ( 144), 278. 
 "Economics," by Aristotle, 276, 
 
 401. 
 
 Edicts, 208. 
 Egidio Colonna, 8. 
 "Einleitung in die Studien der 
 Ethnologische Jurispru- 
 denz," by Post, 109. 
 Eleatic philosophers, 1 
 "Elementa Juris Naturae et Gen- 
 tium," by Heinnecius, 406. 
 "Elementa Jurisprudentiaa Uni- 
 versalis," by Puffendorf, 246. 
 "Elementi di Economia," by 
 
 Cossa, 441. 
 "Elementi di Politica Economia," 
 
 by Beccaria, 462. 
 Empedocles, 1. 
 Emphyteusis ( 335), 531. 
 Employer's liability ( 381), 592. 
 and obligatory insurance 
 
 ( 384), 596. 
 burden of proof, shifting of 
 
 ( 382), 593. 
 laws should be preventative 
 
 and remedial ( 385), 597. 
 not contractual ( 383), 595. 
 "Enciclopedia Juridica," article 
 
 by Del-Guidier. 201. 518. 
 "Enciclopedia Juridica," article by 
 
 Filomusi-Gueln, 388. 
 "Encyclopadia der Staatswissen- 
 
 schaft," by Mohl, 287. 
 "Encyclopedic der Rechtswissen- 
 schaft," article by Bruns, 
 306. 
 
 "Encyclopadie der Rechtswissen- 
 schaft," article by Pepere, 
 
 313. 
 "Encyklopadie" of Holtzendorff, 
 
 article by Bruns, 364. 
 Engels, 684. 
 Ennius, 112. 
 
 Endogamy and exogamy ( 434), 
 
 650. 
 
 "Entwicklunggeschichte des Romi- 
 schen Rechts," by Ihering, 
 365. 
 Environment and heredity ( 54). 
 
 See Heredity. 
 Epicureanism, 2, 4. 
 Epicurus, 214, 240, 347, 350. 
 Epithadeus, 733. 
 Esidemus, 133. 
 "Esperienza e Metafisica," by Spa- 
 
 venta, 172. 
 
 "Esprit des Lois, L'," by Mon- 
 tesquieu, 386. 
 
 "Ethica More Geometrica Demon- 
 strata," by Spinoza, 211. 
 "Ethik," by Seydel, 196. 
 Ethics, a social science (128). 255. 
 
 Kantian ( 112), 232. 
 Eudoxus, 214. 
 
 Evolution, Laws of, show the 
 course of development of 
 law ( 89), 200. 
 historical review of the theo- 
 ries of (62), 155. 
 mechanical (57), 146. 
 not mathematical ( 56), 144. 
 not explained by mechanics 
 
 (60), 152. 
 of social organization as yet 
 
 inexplicable ( 61), 153. 
 Spencer's ( 106), 220. 
 Spencer's, Criticism of ( 55, 
 
 107), 143, 222. 
 Exogamy and endogamy ( 434), 
 
 650. 
 Experimental method possible in 
 
 physiology (24), 106. 
 possible in the political sci- 
 ences ( 25), 106. 
 "Exposition de la Theorie des 
 Chances et des Probabili- 
 tes," by Cournot. 191. 
 
 Family, the first unit of law ( 43). 
 128. 
 
 development of ( 440), 659. 
 
 elementary form among ani- 
 mals (419), 63.
 
 780 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Family (continued) . 
 
 evolution tends to indi- 
 
 vidualization ( 441), 660. 
 former view of origin ( 420), 
 
 635. 
 maternal precedes paternal 
 
 ( 423). 636. 
 modern view of origin (421), 
 
 635. 
 
 paternal and conjugal rela- 
 tions ( 444), 667. 
 primitive, the prototype of 
 
 the state ( 418), 63. 
 Vice's history of (424), 637. 
 Vice's history reviewed ( 425) 
 
 639. 
 
 Family and society ( 443), 664. 
 Farinacius, 61. 
 Felice, 33. 
 Feudal system origin ( 258), 
 
 423. 
 
 Feuerbach, 494. 
 Ferraris, 597. 
 Fichte, 52, 60, 229, 236, 241, 298, 
 
 388, 389, 518, 699. 
 Ficino, 14. 
 Filangieri, 17, 61. 
 Filomusi-Guelfi, 297, 298, 388. 541. 
 "Filosofica del Diritto," by Ros- 
 
 mini, 97. 
 "Filosofia e da Scuola, La," by 
 
 Anguilli, 91, 141, 168. 
 "Filosofia della Politica," by Ros- 
 
 mini, 288. 
 
 "First Principles," by Spencer. 139. 
 Fischella, 375. 
 Florentine Academy, 14. 
 Florentinus, 128, 180, 193, 346. 
 Followers of Vico and the His- 
 torico-Comparative method 
 (28), 107. 
 
 Forests, advantages of ( 279), 460. 
 control conservative ( 283), 
 
 463. 
 
 not land ( 278), 460. 
 public control ( 280), 461. 
 public control bad, but un- 
 avoidable ( 282), 462. 
 public control necessary at 
 present time ( 281), 461. 
 
 Forests (continued) . 
 
 public control based on physi- 
 cal harm entails no indem- 
 nity ( 286), 469. 
 public control, not industrial 
 
 ( 285), 467. 
 public control presents many 
 
 difficulties ( 284), 465. 
 public control, Italian authori- 
 ties ( 284), 465. 
 
 "Forme Primitive nell Evoluzi- 
 one Economica," by De 
 Martiis, 516. 
 
 "Fragments de Philosophic Posi- 
 tive et de Sociologie Con- 
 temporaine," by Littre, 258. 
 
 "Frau und der Socialismus, Die," 
 by Bebel, 683. 
 
 Fraud and mistake ( 366), 576. 
 
 Freedom of trade ( 322), 513. 
 
 Freedom, individual, struggle for 
 ( 204), 354. 
 
 Fulfillment, 566. 
 
 "Fundamenta Juris Naturae et 
 Gentium," by Thomasius, 246. 
 
 Fusinato, 594. 
 
 Gabba, 314, 315, 316, 677, 743. 
 Gaius, 94, 112, 207, 208, 209, 346, 
 
 736, 737. 
 
 Galiani, 61, 497, 508. 
 Galileo, 56, 89, 114, 505. 
 Gallupi, 71, 157. 
 Cans, 547, 548, 764. 
 Garati, 22. 
 Gassenti, 37. 
 Gaudenzi, 110. 
 Gay-Lussac, 467, 468. 
 Genovesi, 50, 60, 219, 358. 
 Gentile, 22. 
 
 George, Henry, 443 et seq., 458. 
 "Geschichte des Romischen Rechts 
 
 im Mittelalte," by Savigny, 
 
 363. 
 "Geschichte und der System der 
 
 Rechtsphilosophie in Grund- 
 
 ziigen," by Geyer, 239. 
 Geyer, 239. 
 Gianturco, 591. 
 Gioberti, 71. 309. 
 Gioja, 276.
 
 INDEX 
 
 781 
 
 [The numbers refer to the pages.] 
 
 Giorgi, 375, 376, 377, 379, 381. 
 
 Girard-Teulon, 637, 640, 656. 
 
 Girardi, 332. 
 
 Giudice, Del, 201, 489, 518. 
 
 Gneist, 292. 
 
 Golden Age, difference in the be- 
 liefs of the jurisconsults and 
 physiocrats ( 199), 346. 
 impossible ( 201), 348. 
 jurisconsults' belief in ( 198), 
 345. 
 
 Gorgias, 348. 
 
 "Graeco-Italische Rechtsgesch- 
 ichte," by Leist, 302. 
 
 Gravina, 10, 744. 
 
 Greef, De, 98. 
 
 Greek speculation, 1. 
 
 Grimm, 166. 
 
 Grote, 302. 
 
 Grotius, 17, 22, 33, 39, 95, 107, 
 134, 240, 246, 248, 267, 297, 
 332, 357, 385, 550, 552, 698, 
 742. 
 
 "Grundlage des Naturrechts," by 
 Fichte, 236. 
 
 "Grundlinien der Philosophia des 
 Rechts," by Hegel, 96, 269. 
 
 Guardianship ( 482), 718. 
 creation of ( 484), 729. 
 history of ( 482), 719. 
 
 Guicciardini, 13, 537. 
 
 Gumplowicz, 283. 
 
 Habit (58), 148. 
 
 Ha Her, 62. 
 
 "Handbuch des Franzosischen 
 
 Civilrechts," by Zacharia, 
 
 547. 
 "Handbuch des Romischen Alter- 
 
 tumer, by Lange, 406. 
 Hartley, 37, 158. 
 Hegel, 66, 96, 155, 156, 175. 240, 
 
 248, 255, 268, 269, 270, 292, 
 
 298, 320, 351, 361, 370, 383, 
 
 518, 668, 699, 744. 
 Heinnecius, 406, 567. 
 Helmholtz, 137, 171. 
 Helvetius, 38. 
 Hemmings, 297. 
 Heraclitus, 1. 
 Herbart, 74, 158, 210, 229, 237, 241. 
 
 Heredity (59), 150. 
 
 Heredity and environment ( 54), 
 142. 
 
 Hermann, 626. 
 
 Herodotus, 650. 
 
 Heroic age. The ( 41), 127. 
 
 Hippias of Elis, 347, 348. 
 
 Historical school, 62, 63. 
 
 Historico-comparative method and 
 the followers of Vico (28), 
 109. 
 
 "History of Civilization in Eng- 
 land," by Buckle, 253. 
 
 Hobbes, 25, 210, 214, 240, 297, 343, 
 350, 386. 
 
 Holbach, 37. 
 
 Holtendorff, 287. 
 
 Homer, 112, 301. 
 
 Horace, 346. 
 
 Human age, The ( 42), 127. 
 
 Humboldt, 464, 467. 
 
 Hume, 27, 36, 38, 158, 167. 
 
 Hutcheson, 38. 
 
 Huxley, 681. 
 
 "Ideale del Mondo Greco," by 
 
 Florentinus, 128. 
 
 Ihering, 98, 110, 199, 241, 365, 372, 
 377, 379, 384, 546, 547, 550. 
 551, 552, 555, 616, 617. 
 Illegitimates, status of ( 488), 724. 
 Incorporation ( 221), 374. 
 
 does not affect question of 
 
 reality ( 221), 375. 
 Incorporeal persons, fictional or 
 real ( 209), 361. 
 
 and rights ( 211), 363. 
 
 and rights, Ihering's theory 
 ( 215), 364. 
 
 different theories ( 210), 361. 
 
 existent ( 217), 369. 
 
 non-existence a logical impos- 
 sibility ( 212). 363. 
 
 Giorgi's theory members can- 
 not be subject of rights, 224, 
 377. 
 
 Giorgi theory, basis of criti- 
 cism (226), 380. 
 
 Giorgi's theory, criticism 
 ( 225) 379.
 
 782 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Incorporeal persons (continued). 
 the "Quid Simile" theory 
 
 ( 213), 364. 
 rights without a subject 
 
 ( 215), 366. 
 will (218), 370. 
 wealth cannot be subjective 
 
 ( 216), 368. 
 
 Individualism and the feudal sys- 
 tem ( 257), 421. 
 Individualism modern ( 260), 
 
 427. 
 
 "Individualismo ed il Socialism 
 nel Diritto Contrattuale, 
 L'," by Giantureo, 591. 
 Individuality and Christianity 
 
 ( 256). 420. 
 
 Induction, Duty of ( 32), 115. 
 four methods ( 23), 105. 
 in the critic of law (27), 105. 
 statistical and mathematical 
 
 (30), 112. 
 "Infortuni del Lavoro, Gl'," by 
 
 Fusinato, 594. 
 Ingram, 276. 
 
 Inheritance, factors ( 517), 773. 
 affects all relations of life 
 
 (492) ,732. 
 among the ancients ( 493), 
 
 733. 
 
 Instinct ( 77), 179. 
 "Institutes" 245, 298, 345, 346. 
 Insurance, more economic than 
 
 ethical ( 416), 630. 
 fraud ( 417), 631 . 
 rates are calculable ( 415), 
 
 629. 
 Insurance and socialism ( 413), 
 
 620. 
 socialistic view, criticism of 
 
 ( 414), 628. 
 
 Interest is legitimate ( 386), 597. 
 abrogation of legal maximum 
 
 ( 390). 601. 
 
 is economic ( 391), 602 
 is legal ( 388), 699. 
 recognition of ( 387), 599. 
 Intestacy, founded on family co- 
 ownership ( 498), 745. 
 husband and wife ( 504), 754. 
 incapacities ( 501), 751. 
 
 Intestacy (continued) . 
 
 kinds of succession ( 502), 
 
 752. 
 
 natural relative ( 503), 754. 
 the state the ultimate heir 
 
 ( 505), 755. 
 and testacy co-existing, the 
 
 reserve ( 509), 758. 
 succession ( 500), 751. 
 the reserve, extent of ( 511), 
 
 762. 
 the reserve, criticism of ( 510) 
 
 760. 
 transmission (transmuttio) , 
 
 Succession per stirpes and 
 
 per capita ( 506), 755. 
 "Intrapresa delle Assicurazioni, 
 
 L'," by Zammarano, 629. 
 Ionic philosophers, 1. 
 
 Jacobi, 79. 
 
 Jamblichus, 408. 
 
 Jesuits, 13. 
 
 Jurisprudence, distinct from cus- 
 tom ( 161), 305. 
 industrial ( 305), 491. 
 industrial, divisions of ( 306), 
 491. 
 
 Juristic man. See Man. 
 
 "Jus Naturae Methodo Scienfico 
 Tractatum," by Wolff, 267. 
 
 "Justice," by Spencer, 224, 226, 
 258, 662. 
 
 Justinian, 207, 208, 475, 726, 757, 
 766. 
 
 Kant, 46, 95, 97, 137, 163, 168, 
 180, 191, 210, 228, 229. el 
 seq.,238, 241,246, 251, 267, 
 269, 298, 357, 367, 384, 386, 
 387, 388, 391, 549, 584, 586, 
 668, 697, 742. 
 
 "Kant e rEmpirismo," by Spa- 
 venta, 139. 
 
 "Kapital, Das," by Marx, 440, 497. 
 
 Kerbaker, 121. 
 
 Knowledge is a priori (74), 174. 
 criticism of positivist theory 
 
 of (72), 171. 
 is subjective (73). 172. 
 
 Krause, 78, 98, 241, 289.
 
 INDEX 
 
 783 
 
 [The numbers ref 
 
 "Kritikder Praktischen Vernunft," 
 
 by Kant, 47, 230. 
 "Kritik der Reinen Vernunft," by 
 
 Kant, 47, 230. 
 "Kritische Zeitschrift fur Rechts- 
 
 wissenschaft," by Bluhme, 
 
 305. 
 
 Laband, 203. 
 
 Labeo, 112, 300, 475. 
 
 Labor is a merchandise ( 298), 482. 
 
 price of ( 299), 483. 
 Lactantius, 7. 
 Lafitan, 636, 637. 
 Lametrie, 37, 50. 
 Lampertico, 154, 442. 
 Lampredi, 20, 36, 219. 742. 
 Land. See Property. 
 Lange, 406. 
 Lassalle, 314, 315, 316, 484, 493, 
 
 494, 744. 
 
 Lasson, 370. 375. 377. 
 Laveleye, 389, 405, 407, 507. 
 Law, Definitions of (98). 210. 
 a part of sociotogy ( 134), 264. 
 an ethical principle ( 118), 
 
 240. 
 both abstract and relative 
 
 ( 21), 104. 
 civil and commercial ( 94), 
 
 205. 
 clear, precise, and indubitable 
 
 ( 164), 310. 
 coercive and harmonious 
 
 ( 87), 197. 
 commercial, history of ( 324), 
 
 515. 
 criticism of Mill's utilitarian, 
 
 definition of ( 103), 216. 
 definitions of Krause and 
 
 Ahrens ( 117), 239. 
 developed inductively and de- 
 ductively ( 22), 104. 
 difference and similarity of 
 rational and positive law 
 ( ID, 94. 
 difference between positive 
 
 and rational (152), 295. 
 distinction between private 
 and public ( 90), 201. 
 
 'er to the pages.) 
 
 Law (continued) . 
 
 economic ( 147), 284. 
 
 Fichte's definition of ( 115), 
 236. 
 
 Herbart's definition ( 116), 
 237. 
 
 Hobbes' definition of ( 99), 
 210. 
 
 increase in field of ( 127), 
 253. 
 
 in physiological a nd historical 
 (33), 117. 
 
 in relation to space ( 166), 
 313. 
 
 in relation to time ( 617), 
 314. 
 
 international (96), 206. 
 
 is historical (92). 203. 
 
 Kant's definition ( 111), 229. 
 
 Kant's idea of, is abstract 
 ( 114), 234. 
 
 must consider the social rela- 
 tions ( 16), 99. 
 
 natural and positive, Greek 
 belief in connection of the 
 (200), 347. 
 
 origin of different kinds 
 (154), 297. 
 
 positive, is mandatory and 
 inhibitive (86), 195. 
 
 positive, sources of, first, cus- 
 tom ( 157), 300. 
 
 positive, sources of, second, 
 learned research ( 160). 
 304. 
 
 positive, sources of, third, 
 statutes ( 162), 307. 
 
 positive, is allied with, morals, 
 the social sciences, eco- 
 nomics, and politics (119), 
 242. 
 
 private, five categories of 
 ( 93), 205. 
 
 public ( 95), 205. 
 
 rational a nd positive com- 
 pared ( 155), 298. 
 
 rational and positive. Dis- 
 tinction of the positivists 
 ( 156), 299. 
 
 rational, belief in ( 153), 296.
 
 7S4 
 
 INDEX 
 
 Law (continued) . 
 
 retroactivity, compensation 
 
 ( 169), 317. 
 retroactivity, false rules of 
 
 ( 168), 316. 
 retroactivity, crimes ( 169), 
 
 317. 
 Rousseau's definition of 
 
 (101), 213. 
 Spinoza's definition of ( 100), 
 
 211. 
 subject to evolution ( 88), 
 
 199. 
 
 tridivision of Gaius and Jus- 
 tinian (97), 207. 
 utilitarian definition of ( 102) 
 
 214. 
 Law and morals. See Morals and 
 
 Law. 
 
 Lazzarus, 258. 
 Le Clerc, 34. 
 "Lectures on the Early History of 
 
 Institutions," by Maine 
 
 657. 
 Legacy, acceptance of ( 515), 771. 
 
 vesting of ( 514), 770. 
 Legitimation ( 491), 730. 
 "Legge del piu Forte, La," by Spa- 
 
 venta, 152. 
 "Lehrbuch der Deutsche Straf- 
 
 rechts," by Berner, 330. 
 "Lehrbuch der Institutes des Rom- 
 
 ischen Rechts," by Marez- 
 
 zol, 305. 
 "Lehrbuch des Pandekten," by 
 
 Windcheid, 366. 
 "Lehren vom Zufall, Die," by 
 
 Windelband, 184. 
 "Lehre vom Unternen Staats, 
 
 Die," by Bluntschli,287. 
 Leibnitz, 28, 30, 155, 229, 246, 
 
 311. 744, 749, 750. 
 Leist, 302. 
 Lentulus, L, 300. 
 Letourneau, 258, 637. 
 "Leviathan," by Hobbes, 210. 
 Lewes, 170. 
 "Lezioni di Filosofia," by Floren- 
 
 tinus, 180, 193. 
 "Lezioni di Storia Antica," by 
 
 Boughi, 647. 
 
 [The numbers refer to the pages.] 
 
 "Liberte du Travail, De la," by 
 
 Dunoyer, 478. 
 Liens (33 9), 537. 
 Lille, 468. ' 
 
 Lignano, Giovanni di, 22. 
 "Limiti della Proprieta, I," by 
 
 Cocchia, 391. 
 "Lingua e Diritto," by Gaudenzi, 
 
 110. 
 
 Littre, 257, 258. 
 Livy, 44. 
 Locke, 25, 50, 163, 167, 229, 343, 
 
 386, 497. 
 
 "Logic," by Bain, 25. 
 "Logic," by Stuart Mill, 115. 
 Lomonaco, 394. 
 Loiia, 98, 283, 450, el seq. 
 Lotze, 138, 158. 
 Love a late development ( 429) , 
 
 644. 
 origin of family relation 
 
 (442), 662. 
 
 Lubbock. 126, 258, 636, 652, 739. 
 Luca, De, 743. 
 Lucci, 530. 
 
 Lucretius, 133, 346, 637, 640. 
 Lully, Raymond, 11. 
 Lupo, 22." 
 Luther, 13. 
 Lycurgus, 112, 407. 
 
 McLennan, 636, 640, 652, 684, 740. 
 
 Mably, 743. 
 
 Macchiavelli, 13, 44. 
 
 "Mahabharata," 650. 
 
 Maine, 102, 109, 110, 125, 208, 301. 
 
 302,303,308,359,404,423, 
 
 429, 569, 659, 735, 740. 
 Maistre, 62. 
 "Maladies de la Personalite," by 
 
 Ribot, 182. 
 Malebranche, 28. 
 Malthus, 61, 149, 278, 280, 396, 
 
 444. 
 Man, an organic spiritual subject 
 
 ( 48), 135. 
 individual and social (91), 
 
 202. 
 juristic, the subject of rights 
 
 and du ties ( 170). 3 19.
 
 INDEX 
 
 785 
 
 [The numbers refer to the pages.] 
 
 Man (continued) . 
 
 juristic, two prerequisites 
 
 ( 172), 321. 
 
 the origin of economic rela- 
 tions ( 276), 453. 
 "Man versus the State, The," by 
 
 Spencer, 299. 
 
 Manu and Nerada, 208, 715. 
 Marezoll, 306. 
 Marghieri, 624. 
 
 Marius Paganus. See Paganus. 
 Marriage ( 445), 668. 
 
 a spiritual, mental, and physi- 
 cal union (446), 669. 
 annulment ( 451), 672. 
 between relatives ( 448), 674. 
 civil and indissoluble ( 468), 
 
 697. 
 conditions and impediments 
 
 ( 447), 670. 
 ethical, religious, and juridical 
 
 (453), 674. 
 husband must have authority 
 
 ( 458), 682. 
 
 impediment of attempted mur- 
 der ( 450), 672. 
 indissolubility ( 446), 696. 
 indissolubility, demanded by 
 morality, religion, and poli- 
 tics ( 467), 696. 
 property ( 463), 692. 
 property, history of ( 464), 
 
 693. 
 
 state control of (454), 675. 
 Marriage and adoption (449), 672. 
 Marsh, 464, 468. 
 Marsilius, 8. 
 Martial, 132. 
 
 Martiis, Cognetti de, 276, 516. 
 Marx, Karl ( 311), 98, 283, 440, 
 458, 493, 494, 495, 497, 507, 
 508, 509, 510. 
 
 Masci, 145, 148, 164, 181, 187. 
 Materialism, Bacon's ( 49), 135. 
 the result of illegitimate de- 
 duction (50), 136. 
 psychological and physical 
 
 ( 51), 137. 
 
 Maternal and paternal genealogy 
 ( 435), 653. 
 
 Matriarchy ( 432), 648. 
 
 inheritance ( 433), 650. 
 Melanchthon, 14, 297. 
 Menger, 590. 
 Mengotti, 463, 465. 
 Merlo, 123. 
 
 Messedaglia, 279, 466, 468. 
 Metaphysics and necessity ( 5), 
 
 90. 
 "Metaphysische Aufangrunde der 
 
 Rechslehre," by Kant, 95. 
 Mill, 106, 107, 115, 138, 160, 214, 
 216, 222, 240, 254, 262, 386, 
 680, 681. 
 Milone, 543. 
 
 Mind, attributes of ( 76), 175. 
 Mines not land ( 278), 460. 
 economics favor freedom 
 
 ( 295), 478. 
 
 history of law of ( 289), 471. 
 no title by accession (291), 
 
 474. 
 objection to emancipation 
 
 (290). 471. 
 special conditions special laws 
 
 ( 287), 470. 
 
 title by "fictiones" (292), 474. 
 Minghetti, 284, 285, 286. 
 Mirabeau, 743. 
 Mistake ( 366), 576. 
 Modern philosophy, 19. 
 
 character of, as foreshadowed 
 
 by Vico (7). 92. 
 Modestinus, 195. 
 Mohl, 286. 292. 
 Molineo. 559, 560. 
 Molitor, 547. 
 Mommsen, 406, 409. 
 Monad, Spirit as (63), 157. 
 Monogamy, development from pro- 
 miscuity ( 430), 646. 
 development from promiscu- 
 ity. Sandwich Islands ex- 
 amples (431), 647. 
 Montesquieu, 17, 26, 27, 62, 309, 
 
 386. 
 "Moral Statistik," by Oettingen, 
 
 190. 
 
 "Moralische Statistik und die Men- 
 schlicheWillensfreiheit, Die," 
 by Drobisch, 189.
 
 786 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Morale dei Positivisti," by Ar- 
 
 digo, 265. 
 Morals, Kantian, are abstract 
 
 ( 113), 233. 
 Morals and law originally one 
 
 ( 120), 242. 
 confusion and separation both 
 
 wrong ( 123), 247. 
 difference not understood by 
 
 Rosmini ( 125), 251. 
 distinguished by the Romans 
 
 ( 121), 243. 
 distinction disappeared in 
 
 Middle Ages (122), 245. 
 part of ethics ( 85), 194. 
 separation and contradiction 
 
 (124), 249. 
 Morgan, 636, 640, 684. 
 Morianus, 245. 
 Mortgage ( 336), 533. 
 Motive ( 82), 185. 
 Miihlenbruch, 547. 
 Miiller, 166. 
 Mute ages, The ( 39), 124. 
 
 Natural goodness of man ( 196), 
 343. 
 
 Naturalism, 12. 
 
 "Naturrecht auf den Grunde der 
 Ethik," by Trendelenburg, 
 96. 
 
 Nemour, Dupont de, 257. 
 
 Neo-criticism, 85. 
 
 Neo-platonism, 3, 4, 7, 17. 
 
 Nicholas of Cusa, 11. 
 
 Niebuhr, 406. 542. 
 
 Nifo. 276. 
 
 Notes, promissory ( 411), 613. 
 
 Noumenon, knowable through phe- 
 nomenon ( 75), 175. 
 
 "Nova Methodus Discendae Juris- 
 prudentiae," by Leibnitz, 
 246. 
 
 Novation, 564. 
 
 Obligation, definition of ( 350), 
 
 553. 
 division in re subject and 
 
 object ( 354), 5 58. 
 extinguishment ( 358), 563. 
 in civil and natural law ( 357) 
 
 562. 
 
 Obligation (continued) . 
 
 prerequisites ( 351), 554. 
 sources ( 352), 556. 
 sounding in tort ( 353), 557. 
 subdivision qua object ( 355). 
 
 559. 
 vincula (356). 560. 
 
 Occam, 10. 
 
 Oettingen, 190, 257. 
 
 Offer and acceptance ( 365), 574. 
 
 Olendorp, 14, 297. 
 
 Opilius, 112. 
 
 Orbilius, 112. 
 
 "Origin of Civilization and the 
 Primitive Condition of Man, 
 The," by Lubbock,126, 636. 
 
 "Origin of Consanguinity and 
 Primitive Conditions of Ma- 
 trimony," by McLennan, 
 636. 
 
 Origin of mind, according to the 
 positivists ( 69). 168. 
 
 "Origines du Marriage et de la 
 Famille, Les," by Girard- 
 Teulon. 637. 
 
 Ownership. See Property. 
 
 Paganus, 44. 
 Palazzo, 23. 
 Pandects, 298. 
 Pantaleoni, 302, 406. 
 Papinianus, 369, 742. 
 Parallelism in the development of 
 language and law (29), 110. 
 Parental relation, a derivative of 
 
 the conjugal ( 477), 712. 
 fundamental ( 478), 712. 
 Rosmini's theory ( 479), 714. 
 Partnership, three kinds ( 401). 
 
 614. 
 
 authorization ( 407), 620. 
 not legal entities ( 403), 615. 
 publicity and personal liabil- 
 ity ( 409), 622. 
 subdivisions of ( 402), 615. 
 supervision (408), 621. 
 Patents ( 328), 522. 
 Paternity, symbolic recognition 
 
 ( 438), 656. 
 
 a derivative of property 
 (437), 655.
 
 INDEX 
 
 787 
 
 [The numbers to refer the pages] 
 
 Paternity (continued) . 
 
 inquiry into ( 489), 727. 
 proof of ( 490),. 729. 
 Patria potestas ( 480), 715. 
 
 enjoyed by mother ( 481) , 
 
 717. 
 
 Patriarchy ( 439), 657. 
 Patristicism, 10. 
 Patterson, 565. 
 Payment, 563. 
 Pelgrave, 565. 
 Pepere, 313. 
 Per capita, 755. 
 Per stirpes, 755. 
 Person, the origin and source of 
 
 rights ( 177), 325. 
 Personality reinstated at the 
 
 reformation ( 259), 425. 
 Peter of Andlo, 8. 
 "Peuples Semitiques dans 1'His- 
 
 toire de la Civilisation, De 
 
 le Part des," by Renan, 119. 
 "Phanomenologie des Geistes," by 
 
 Hegel, 351, 352. 
 Pherecrates, 348. 
 "Philosophic des Rechts nach Ge- 
 
 schichtliche Ansicht," by 
 
 Stahl, 305. 
 Philosophy a part of every science 
 
 ( 3), 88. 
 depends upon the sciences 
 
 ( 4), 89. 
 Philosophy and the sciences ( 1), 
 
 87. 
 Philosophy of law, Distinction 
 
 from sciences of legislation 
 
 (20), 102. 
 
 Philosophy of law, The ( 6), 91. 
 not based on a priori princi- 
 ples ( 12), 95. 
 
 Philosophy. Roman (46), 132. 
 of the Middle Ages, 7. 
 later (47), 134. 
 Pindar. 112. 
 Pisanelli, 723. 
 Plato, 2, 14, 109, 110, 112, 114, 
 
 131, 240, 243, 285, 286, 306, 
 
 307,516,667, 668.714,741. 
 Plautus, 112. 
 
 Pledge and mortgage ( 336), 533. 
 Pliny, 276. 
 
 Plotinus, 5. 
 
 Plutarch, 44, 407. 
 
 Politics, a practical social science 
 
 ( 119), 287. 
 ethical ( 142), 274. 
 definition of ( 148), 286. 
 moral (150), 289. 
 Politics and statemanship ( 151), 
 
 291. 
 
 Polyandry ( 436), 654. 
 Polybius, 13, 44, 541. 
 Pomponazzi, 14. 
 Pomponius, 565. 
 Porphyry, 408. 
 
 Positivists, wrong in denying spe- 
 cial philosophers ( 19), 101. 
 Possession, not property ( 340), 
 
 539. 
 
 a right ( 341), 539. 
 absolute theories ( 346), 547, 
 criticism of theories ( 347). 
 
 548. 
 
 history of ( 342), 541. 
 fictional ( 348), 550. 
 in modern law ( 344), 544. 
 in rational law ( 345), 546. 
 in Roman law ( 343), 543. 
 intent is necessary ( 349), 
 
 550. 
 
 "Possesso, II," by Ruggieri, 550. 
 "Possesso delle Cose e dei Diritti," 
 
 by Milone, 543. 
 Post, 109. 
 Pothier, 560. 
 Praxiphanes, 112. 
 Prescription ( 240), 399, 566. 
 "Prime Linee di un Programma 
 critico di Sociologia," by 
 Vanni, 261. 
 "Primi del Diritto Romano," by 
 
 Capuanus, 244. 
 
 "Primitive Culture," by Tyler, 258. 
 "Principe," by Macchiavelli, 44. 
 "Principi di Filosofia," by Spa- 
 
 venta, 352. 
 "Principien der Politik, Die," by 
 
 Holtzendorff. 
 "Principles of Political Economy, 
 
 The," by Mill, 386. 
 "Principles of Psychology," by 
 Spencer, 139.
 
 788 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Principles of Sociology," by Spen- 
 cer, 126, 257, 637. 
 "Problema della Filosofia del Di- 
 
 ritto, II," by Vanni, 100. 
 Prodicus of Chios, 347. 
 Profit, a rent ( 307), 492. 
 "Programma," by Carrara, 335. 
 "Progress and Poverty," by Henry 
 
 George, 443. 
 Prometheus, 128. 
 Promiscuity, traces in marriage 
 
 rites (428), 642. 
 
 Promiscuity and monogamy 
 (430), 646. 
 
 Sandwich Island example 
 
 ( 431), 647. 
 
 Property, commercial, definition 
 of ( 321), 512. 
 
 accession ( 238), 397. 
 
 alteration ( 239), 398. 
 
 appropriation (237), 396. 
 
 an attribute of man ( 244), 
 402. 
 
 ancient family communities 
 ( 254), 415. 
 
 and abstract man ( 233), 390- 
 
 and equality of inherent rights 
 (236), 395. 
 
 and philosophy of law ( 242), 
 400. 
 
 and practical interest ( 294), 
 476. 
 
 code definitions ( 234), 392. 
 
 collective ownership disap- 
 pears with development of 
 work ( 264). 433. 
 
 common ownership of land 
 ( 250), 409. 
 
 derivative methods of acquisi- 
 tion (241), 399. 
 
 disbelief in priority of collec- 
 tive ( 255), 418. 
 
 George's theory ( 270), 443. 
 
 George's theory, criticised 
 ( 271), 445. 
 
 history of, Grotius ( 230) , 385. 
 
 history of, Kant ( 231), 386. 
 
 history of, Fichte ( 232), 388. 
 
 industrial ( 296), 480. 
 
 in capital and labor (320), 
 510. 
 
 Property (continued) . 
 
 in Greece ( 247), 406. 
 
 in labor ( 300), 485. 
 
 in Rome ( 248), 407. 
 
 in the air ( 293), 476. 
 
 land not the gift of God 
 ( 272), 447. 
 
 Loria's theory ( 273), 450. 
 
 Loria's conclusions ( 274), 
 451. 
 
 Loria's theory criticised 
 ( 275), 453. 
 
 Loria's theory, a contradic- 
 tory ( 277), 455. 
 
 modern means of acquisition 
 ( 263), 431. 
 
 necessary restrictions ( 235), 
 394. 
 
 no rational distinction be- 
 tween land and goods 
 ( 265). 433. 
 
 origin and development 
 ( 246), 404. 
 
 original methods of acquisi- 
 tion (237), 396. 
 
 personalty and realty ( 262), 
 430. 
 
 philosophy of ( 229), 384. 
 
 prescription ( 240), 399. 
 
 primitive, modern traces of 
 ( 251), 410. 
 
 primitive, example in ancient 
 Europe ( 252), 411. 
 
 primitive, Polynesia ( 253), 
 413. 
 
 primitive means of acquisition 
 (261), 428. 
 
 private and the socialists 
 (308), 493. 
 
 private is economic ( 267), 
 438. 
 
 rent ( 269), 440. 
 
 rights ( 228), 383. 
 
 rights of, fundamental basis 
 (22), 383. 
 
 socialistic communism (268), 
 439. 
 
 Spencer's collectivism ( 266), 
 435. 
 
 tendency to acquisition an in- 
 stinct ( 243), 401.
 
 INDEX 
 
 789 
 
 [The numbers refer to the pages.] 
 
 "Proprieta, La," by Lampertico, 
 439. 
 
 "Proprieta Collettiva nell' Apen- 
 nino Marchigiano, La," by 
 Valenti, 412. 
 
 "Propriete et ses Formes Primi- 
 tives, De la," by Laveleye, 
 389, 405, 406. 
 
 Protagoras, 348, 349. 
 
 Protestantism, 13. 
 
 Proudhon, 699, 700. 
 
 Puchta, 301, 363, 406, 542, 547, 710. 
 
 Puffendorf, 33, 95, 357, 617, 698, 
 742, 743. 
 
 Pythagoras, 130, 131, 285, 408. 
 
 Pythagoreans, 1, 3, 114. 
 
 Quesnay, 344. 
 Quetelet, 189, 258. 
 "Quintessenz der Socialismus, 
 
 Die," by Schaffle, 496. 
 Quintilian, 741. 
 
 Rae, 445, 493. 
 
 Randa, 364, 547, 548. 
 
 Rational Law. See Law. 
 
 Reactionary period, 62. 
 
 Realism, 8. 
 
 "Realta delle Persone Giuridiche, 
 
 Sulla," by Fisichella, 375. 
 Reason, a result of evolution 
 
 ( 110), 228. 
 
 development of ( 202), 350. 
 "Recht des Besitzes in Mittelal- 
 
 ten und in der Gegenwart," 
 
 by Bruns, 542. 
 "Recht des Besitzes," by Savigny, 
 
 540. 
 "Recht und Verhaltnisse von Stand- 
 
 punkte in Volkwartschaft- 
 
 lich Gutenlehre," by Bohm- 
 
 Bawerk, 284. 
 Reclus, 465. 
 Release, 564. 
 "Reliquie della Proprieta Collet- 
 
 tiva in Italia," by Venezia, 
 
 412. 
 
 Renaissance, 12, 19. 
 Renan, 119. 
 Renazzi, 61. 
 Representation (67), 165. 
 
 "Republica delle Api, La," by 
 
 Bonifazio, 345. 
 Rescission, 564. 
 Retroactivity. See Law. 
 Ribot, 164, 182, 183. 
 Ricardo, 447, 448, 486, 497, 498 
 
 507, 508. 
 Riehl, 171. 
 Rights, individual, the sujects of 
 
 ( 214), 365. 
 absolute and relative duties 
 
 ( 173), 322. 
 correlation of duties and 
 
 ( 193), 341. 
 
 development of ( 178), 326. 
 increase with man's develop- 
 ment ( 175), 324. 
 inherent and acquired ( 174), 
 
 323. 
 
 inherent equality of and prop- 
 erty ( 236), 395. 
 invention and discovery is 
 
 economic ( 326), 519. 
 member of corporation ( 224) 
 
 377. 
 not abstract, but components 
 
 of life ( 206), 356. 
 of competition (323), 514. 
 of exemption ( 323), 514. 
 of invention and discovery 
 
 ( 325), 515. 
 of invention is a property 
 
 right (327), 520. 
 of invention is economic 
 
 (326), 519. 
 of property, fundamental 
 
 basis ( 227), 383. 
 personal and property ( 329), 
 
 523. 
 
 subsidiary inherent (179),327. 
 subsidiary inherent in struggle 
 
 for development ( 205) , 355 . 
 toaid( 190), 339. 
 to associate ( 189), 337. 
 to freedom ( 187), 335. 
 to freedom and self-defense 
 
 ( 183), 329. 
 to honor and good name 
 
 ( 185), 333. 
 to life ( 180), 327. 
 to life, suicide ( 181), 328.
 
 790 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Rights (continued) . 
 
 to work, distinguished from 
 
 the socialistic right to work 
 
 ( 192), 340. 
 
 without a subject ( 215), 366. 
 Riviere, Mercier de la, 257. 
 Roberty, De, 258. 
 Robespierre, 743. 
 Romagrosi, 56, 96, 98, 219, 248, 
 
 267, 336, 337, 339, 370, 463, 
 
 513, 528, 547. 
 Roman dogma, 1. 
 Roman philosophy, 5. 
 "Romische Geschichte," by 
 
 Mommsen, 406. 
 "Romische Geschichte," by Nieh- 
 
 buhr, 542. 
 Roscher, 499. 
 Rosmini, 71, 72, 97, 103, 108, 158, 
 
 160, 196, 198, 199, 233, 240, 
 
 248,251,287,320,323,326, 
 
 331,332,361,370,383,384, 
 
 395, 430, 568, 581, 582, 692, 
 
 699, 712, 714, 715, 724, 728, 
 
 729, 747, 749, 750. 
 Rossi, 271, 273, 394, 427. 
 Rousseau, 39, 60, 210, 213, 241, 
 
 298, 344, 357, 742. 
 Rudorf, 547. 
 Ruggieri, 550, 552. 
 Rumelin, 113. 
 
 "Saggi sulla Teoria Sociologica della 
 Popolazione," by Vanni,280. 
 
 "Saggio Intorno ad una Quistione 
 di Diritto Preistorico," by 
 Pantaleoni, 302. 
 
 St. Augustine, 679. 
 
 St. Jerome, 679. 
 
 Saint Pierre, 37. 
 
 St. Thomas, 240, 297, 674. 
 
 Salandra, 628. 
 
 Salvioli, 590. 
 
 Savigny, 63, 110, 305, 306, 312, 
 317,362,363,370,371,540, 
 541, 542, 546, 547, 548, 549, 
 550. 
 
 Savonarola, 13. 
 
 Savoye-Rollin, 709. 
 
 Say, 394. 
 
 Scepticism, 2. 
 
 Sceptics, 133. 
 
 Schaffle, 258, 262, 496, 504, 505. 
 Schelling, 63, 66, 80, 298, 370. 
 Schliemann, 580. 
 Schlossmann, 571, 572. 
 Sciajola, 542. 
 Scialoia, 286. 
 Schleiermacher, 64. 
 Scholasticism, 10, 12. 
 Schopenhauer, 80, 518. 
 "Science au Point de Vue Philoso- 
 phique, La," by Littre, 257. 
 Sciences make for unification (2), 
 
 87. 
 "Scienza Nuova," 41, 45, 92, 256, 
 
 639, 640. 
 
 Scotch philosophers, 38. 
 Selden, 34, 95, 357. 
 Self-defense (183), 329. 
 Self-defense, limited by circum- 
 stances ( 184), 330. 
 Self-realization ( 194), 343. 
 Seneca, 243, 346, 679, 741. 
 Sensus abditus, 15. 
 Sensus additus, 15. 
 Serafini, 547. 
 Servitudes ( 330), 524. 
 
 derivatives from acts ( 333), 
 
 528. 
 
 of construction ( 334), 530. 
 personal (331), 524. 
 predial ( 332), 527. 
 Seven sages and the early sophists 
 
 (44), 129. 
 
 Sex, comparison of ( 456), 679. 
 equality of the ( 455), 678. 
 equality of opportunity 
 
 (462), 690. 
 
 inequality of ( 457), 680. 
 socialistic equality of ( 459), 
 
 683. 
 socialistic equality of, based 
 
 on error (461), 687. 
 socialistic equality of, criti- 
 cised ( 460), 685. 
 Sextus Empiricus, 108, 133. 
 Seydel, 196. 
 Shaftsbury, 38. 
 
 "Sistema del Diritto Civile Ro- 
 mano," by De Crescenzio, 
 547.
 
 INDEX 
 
 791 
 
 [The numbers ref 
 
 Smith, Adam, 38, 269, 270, 344, 
 
 386, 394, 497, 498, 507, 508. 
 "Social Statics," by Spencer, 228, 
 
 299, 435. 
 Socialism ( 309), 495. 
 
 of today ( 310), 496. 
 
 and private property ( 308), 
 
 493. 
 
 and insurance. See Insurance, 
 and progress ( 310), 503. 
 "Socialism e Contemporaine," by 
 
 Laveleye, 507. 
 
 Socialistic equality ( 188), 336. 
 Societies, cooperative ( 405), 618. 
 
 regulation of ( 406), 620. 
 Society, present state ( 315), 503. 
 a necessity ( 171), 320. 
 not a natural organism (317), 
 
 506-. 
 
 Society and family ( 443), 664. 
 "Sociologia," by Ardigo, 265. 
 "Sociologie L'apres 1'Ethnologie, 
 
 La," by Letourneau, 258, 
 
 637. 
 Sociology, Beginning of ( 130), 
 
 257. 
 the social philosophy ( 132), 
 
 261. 
 must regard the aggregate 
 
 and the units ( 133), 263. 
 more than a philosophy of law 
 
 ( 135), 265. 
 Socrates, 2, 3, 104, 108, 132, 171, 
 
 716. 
 Socratic philosophy and Aristotle 
 
 ( 45), 131. 
 Solon, 112, 407, 641. 
 Sophists, 2, 347, 362. 
 Sophists, The early and the seven 
 
 sages (44), 129. 
 Spaventa, 71, 139, 152, 171, 172, 
 
 177, 194, 352. 
 Spedalieri, 53, 219, 358. 
 Spencer, 100, 126, 141, 143, 155, 
 
 158, 163, 176, 181, 182, 220, 
 
 224, 226, 228, 240, 253, 254, 
 
 258, 259, 262, 263, 279, 281, 
 
 299, 336, 339, 435, 437, 637, 
 
 652, 659, 681, 690, 691, 739. 
 Spencer, the greatest sociologist 
 
 ( 131), 259. 
 
 :r to the pages.] 
 
 Spencer's unknowable (52), 139. 
 Spinoza, 28, 191, 210, 211. 
 Spirit as a Monad (63), 157. 
 
 indivisible, quantitatively or 
 
 qualitatively (64), 158. 
 and the senses ( 65), 160. 
 Stagirite. See Aristotle. 
 Stahl, 63, 80, 305, 553, 744. 
 State and its evolution ( 191), 
 
 339. 
 State of nature, man's powers in 
 
 ( 195), 343. 
 traces in earliest writings 
 
 ( 197), 345. 
 
 Italian philosophers are op- 
 posed to ( 207), 358. 
 Statistics, need of ( 31), 114. 
 Statistics and chance ( 83), 188. 
 Status, confusion with contract 
 
 ( 208), 359. 
 Status, not mere growths ( 163), 
 
 308. 
 
 Stein, 292, 603, 606, 607, 608. 
 Steinthal, 166, 258. 
 Stoerk, 203. 
 Stoicism, 2, 4. 
 Stoics, 131, 133, 240, 245, 276, 323, 
 
 714. 
 
 Stoppani, 466. 
 Straecha, 517. 
 Strabo, 60. 
 Stobo3us, 131. 
 "Studi sull' Etica di Hegel," by 
 
 Spaventa, 194. 
 "Studii di Sumner Maine e le 
 
 Dottrine della Filosofia del 
 
 Diritto, Gli," by Vanni, 110. 
 "Study of Sociology, The," by 
 
 Spencer, 259. 
 Sub-human justice ( 108), 224. 
 
 Criticism of ( 109), 226. 
 Substitution, 564. 
 Suessmilch, 257. 
 Suicide ( 181), 328. 
 
 philosophical relation of suicide 
 
 and law ( 182), 329. 
 SummumBonum ( 84), 191. 
 "System of Consanguinity and 
 
 Affinity," by Morgan, 636. 
 "System der Erworbenen Rechts," 
 
 by Lassalle, 314.
 
 792 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "System der Finanzwissenschaft," 
 
 by Roscher, 499. 
 "System der Heutigen Romischen 
 
 Rechts," by Savigny, 301. 
 "System der Oestreichischen Al- 
 
 meinen Rechts," by Unger, 
 
 363. 
 "System der Pandekten," by Thi- 
 
 baut, 541. 
 "System des Romischen Civil- 
 
 rechts," Cans, 547. 
 
 Tabula rasa, 26, 149, 179. 
 
 Tacitus, 419. 
 
 "Temperament! della Proprieta 
 
 Prediale, I," by Lomonaco, 
 
 394. 
 "Teoria della Retroactivita delle 
 
 Leggi," by Gabba, 314. 
 "Teorie Sociali dei Sofisti Greci, 
 
 Sulla." by Chiappelli, 130. 
 "Terra e la Sistema Sociale, Le," 
 
 by Loria, 450. 
 Testacy, foundation of ( 497), 
 
 741. 
 and ancestor worship ( 496), 
 
 738. 
 and intestacy, coexisting. The 
 
 reserve ( 509), 758. 
 founded on ownership ( 499), 
 
 748. 
 
 no representation ( 512), 764. 
 succession ( 507), 756. 
 Theophilus. 742. 
 Theophrastus, 109. 
 "Theorie du Code Penal," by 
 
 Chauveau and Helie, 334. 
 Theory that the useful, just, and 
 
 honest are three aspects of 
 
 the good ( 126), 252. 
 Theosophy, 17. 
 Thibaut, 63, 541. 
 Thiers, 384. 
 Thilo. 370. 
 
 Thomas Aquinas. See Aquinas. 
 Thomasius, 34, 246, 698. 
 Thornton, 339. 
 Thought ( 68), 166. 
 Thrasimachus, 348, 349. 
 Tocco, 184. 
 
 "Tractatus Theologico-Politicus," 
 by Spinoza, 211. 
 
 Tracy, 37. 
 
 "Traite de Legislation," by Comte 
 309. 
 
 Transmission (transmittio) (506), 
 755. 
 
 Transportation ( 412), 615. 
 
 "Treatise on Civil Government," 
 by Locke, 386. 
 
 Trendelenburg, 76, 96, 239, 240, 
 263, 268, 270. 271, 310, 314, 
 320, 325, 361, 370, 384, 547, 
 585, 586, 673, 692, 699, 728. 
 
 Tronchet. 743. 
 
 Troplong, 617, 742. 
 
 Tullio, 213, 387, 626. 
 
 Turgot, 83, 344, 486, 513. 
 
 Tyler, 258. 
 
 Tyndall, 155. 
 
 Ulpian, 112, 244, 300, 736, 737, 742. 
 Ulrici, 240. 
 Unger, 363. 
 
 Unions, basis (301), 486. 
 history of ( 302), 487. 
 legal ( 303). 486. 
 potentiality of harm ( 304), 
 
 489. 
 
 Unus homo, nullus homo, 77. 
 "Ursprung der Familie, des Privat- 
 eigenthums und des Staats, 
 Die," by Engels, 684. 
 Usury ( 389), 600. 
 
 a debt without consideration 
 
 (398). 610. 
 
 a crime against private prop- 
 erty ( 399), 611. 
 and high interest ( 393) , 605. 
 ineradicable by law ( 400),612. 
 is a crime ( 396). 607. 
 its abolition ( 395), 605. 
 methods of ( 392), 603. 
 simple and seductive ( 393), 
 
 604. 
 
 Stein distinction ( 397), 608. 
 Utilitarianism, the material of law 
 
 ( 104), 218. 
 Maine's criticism of ( 105), 
 
 219. 
 "Utilitarianism," by Mill, 214.
 
 INDEX 
 
 793 
 
 Valenti, 412. 
 
 Vanezian, 412. 
 
 Vanni, 100, 110, 261, 261, 280, 299. 
 
 Vanni's Philosophy of Law ( 18), 
 
 100. 
 
 Van Wetter, 542, 543. 
 Variation, Dependent on stimuli 
 
 ( 70), 169. 
 
 Dependent on stimuli, con- 
 trary to modern thought 
 (71), 170. 
 Vattel, 36. 
 
 Vedic law is harmony ( 38), 123. 
 Veggasi, 369. 
 Vergil, 346. 
 Vessels ( 338), 536. 
 Vico, 41, 50, 57, 92, 93, 94, 96, 98, 
 100, 104, 107, 110, 112, 117, 
 118, 122, 126, 127. 147, 155, 
 194, 199,219,224,240,241, 
 242, 248, 256, 258, 265, 267, 
 281, 289, 301, 302, 308, 309, 
 320, 327, 337, 353, 357, 361, 
 369, 410, 619, 637, et seq., 
 640, 739. 
 belief in a social science ( 129) , 
 
 255. 
 
 believes that phenomena are 
 
 based on reason (17), 100. 
 
 history of human development 
 
 (203), 353. 
 
 human idea of law proved by 
 historical induction ( 26), 
 107. 
 philosophy is historical and 
 
 not abstract ( 8), 92. 
 philosophy is practical (9), 
 
 93. 
 
 showed the different basis of 
 rational and positive law 
 ( 10). 94. 
 theory upheld by modern 
 
 philosophers ( 13), 96. 
 theory, that of the positiv- 
 
 ists (14), 97. 
 theory considers the influence 
 
 of economics ( 15), 98. 
 Vida, Girolamo, 345. 
 Vigliani, 724. 
 Vinnio, 743. 
 
 [The numbers refer to the pages.] 
 
 Viollet, 406. 
 
 Virchow, 155. 
 
 "Vita del Diritto," by Carle, 252. 
 
 Viti, 546. 
 
 Vitruvius, 346. 
 
 Vives, 14. 
 
 Voconian law, 679. 
 
 Voet, 743. 
 
 Volcraff, 109. 
 
 Voltaire, 13. 
 
 "Vom Beruf Unser Zeit fur Gesetz- 
 gebung und Rechtswissen- 
 schaft," by Savigny, 312. 
 
 Von Sybel, 509. 
 
 "Vorlesungen iiber das Heutige 
 
 Romische Recht," 
 Puchta, 363. 
 
 by 
 
 Wagner, 113, 339, 434, 435. 
 
 Warnkonig, 306. 
 
 "Wealth of Nations, The," by 
 
 Adam Smith, 344. 
 Will ( 79), 180. 
 
 resultant from union of wills 
 
 ( 218), 370. 
 resultant, a higher form of 
 
 evolution ( 219), 371. 
 Wills, Roman ( 494), 735. 
 
 in the Middle Ages (495), 
 
 737. 
 
 forms of (508), 758. 
 requisites of (513), 766. 
 Windelband, 184. 
 Windscheid, 366, 367, 373, 378, 
 
 540, 541, 555. 
 Winkler, 14, 297. 
 Wolff, 35, 50, 267, 311, 742. 
 Wundt, 171. 
 
 Xenophon, 516, 679. 
 
 Zachariae, 430, 547. 
 Zammarano, 630, 631. 
 "Zeitschrift." by Warnkonig, 306. 
 "Zeitschrift fur Volkerspsycho- 
 
 logie und Sprachwiseen- 
 
 schaft," 258. 
 Zeno, 132, 532. 
 Zimmermann, 160. 
 Zitelmann, 371, 378.