mistress strongly suspected to have been stolen from the desk of her husband, who thereupon sent for a policeman to search her boxes, and so discovered the spoons now produced. Most people would consider that this was the case for the prosecution and not for the defence, but Mr. Maine seems a little disposed to put it thus: The discovery of the spoons was occasioned by the policeman's search, which would never have taken place if the lady had not supposed that some coins shown her by the draper were her husband's; and she would never have gone to the draper's at all if the cook had not gossiped about the dresses bought by the prisoner; so that the whole case, gentlemen of the jury, depends upon the idle tittle-tattle of one silly woman about the dress of another. An advocate of the Law of Nature might say to Mr. Maine: It may be perfectly true that I should never have thought as I do unless Rousseau, Grotius, the lawyers of the 14th century, the jurisconsults of Justinian, and the philosophers of Greece had thought certain other things before me, but I can nevertheless give very good reasons for what I do think. I assert that Nature imposes upon men certain laws capable of distinct enunciation, and attended by distinct penalties. For example, the Law of Nature forbids murder; and if there were no municipal laws at all, murder would still incur natural penalties in the shape of disapprobation and vengeance. The manner in which I came by this opinion has nothing whatever to do with its truth.

The true answer to such assertions is to be drawn, not from Mr. Maine, but from Mr. Austin. It is that the word 'law' in such phrases is a delusive metaphor, because it suggests to the mind a closer analogy than really exists between commands issued by and to reasonable beings, and maxims put as it were into the mouth of abstractions; and also a dangerous metaphor, because it encourages that slavish temper of mind which delights to find consequences asserted to be inevitable, in order that it may acquiesce in them, and of which fatalism is the theoretical exponent. This is a complete answer to such theories; and when it has once been given, and is recognised as true and sufficient, historical investigations are in their proper place. A man who has a firm hold of the truth may advantageously employ himself in constructing a map of error, and thinking what was the connexion of ideas by which people were led into the fallacies which he has recognised as such; but, unless he has some acknowledged standard of truth, his speculations are like a map in which all the roads are marked and all the towns left out; they show nothing but a constant succession of opinions, each of which was inevitable when it prevailed, and was suc

The posi

ceeded by a series of equally inevitable successors. tivist may be considered as a man who has made himself a eunuch for the sake of the kingdom of philosophy. He is debarred by what he calls his method' from attempting to alter what exists. The only relation in which he can consistently view opinions is that of their succession to one another; and if he does not derive tests of truth and utility from some other system, he will get none from his own; though, by two selfimposed fallacies which it requires some effort to apprehend, he seems to think he can.

Two tacit assumptions will be found to pervade all positivist writers on all subjects. The first is that opinions are given up because they are shown by experience to be false. The second is that their own opinions will be perpetual, and are thus the test and measure of truth. Having made these tacit assumptions, they proceed to fortify their own opinions by showing how they were gradually formed out of those which preceded them, forgetting that they will probably be in their turn superseded by others; unless, indeed, they should succeed in persuading mankind in general to confine themselves to retrospection, and to be satisfied with surrendering all hope of future golden eggs, for the sake of dissecting the goose which laid those which are already in their possession.

Mr. Maine personally has written nothing or little which would in any degree justify these criticisms, though some of his critics have attempted to find in his book an illustration of the truth of positivist theories. Though he sometimes adopts turns of expression which belong to such theories, he confines himself most cautiously and studiously to the investigation of facts; he puts forward no philosophical theories at all, but leaves to others the question how far the truth of the theories which come before him is affected by the account which he gives of their origin. The light by which his book should be read is supplied by Bentham and Mr. Austin, who have analysed with a precision, which leaves hardly anything to be desired, the fundamental notions which lie at the bottom of jurisprudence. When the rest of Mr. Austin's lectures are before the world—even in the incomplete state in which he left them, a broad and clear meaning will have been affixed to almost all the leading words which are used in connexion with law under all its forms, and to many of those which occur in discussions on morality. This will supply a starting point for any amount of historical investigation, by the help of which it will be possible to compare the degree in which various systems of law have embodied the great leading principles which

ought to pervade all speculation on the subject, and how far various methods of altering the law have in fact contributed to the general welfare of mankind.

These last words suggest the observation that the speculations of Bentham and Mr. Austin leave one immense question which is vitally essential to their subject comparatively unexplored. This is the question: What that general happiness is which it is the object of legislation and morals to produce? The account of it given by Bentham is the least satisfactory part of his book on the principles of morals and legislation, though by the mere fact that it gave express and intelligible objects to each of those pursuits, the book has exercised an incalculable influence over the whole course of thought and action in this country since its appearance. In a characteristic MS. fragment now published for the first time, Mr. Austin glances at this vast question, and shows how important and how noble an enterprise its solution would be. He says

'Mistakes like those of political economists are made by utilitarians, only of a more general nature. . They take a part of human happiness, or a part of the means towards it, for the whole of human happiness or the whole of those means: e. g. The exclusion of poetry or the fine arts, or the degrading them to "the agreeable." Their eminent utility: the wisdom to be got from poets (give examples). This partial view of human happiness, or of means towards it, will always be taken till a system of ethical teleology be constructed; i. e. an analysis of happiness, the means towards it, and therefore the ends to be pursued directly.'

It is not impossible that by a wise combination of analysis and history, (the first to supply precise general terms and a judicious classification, and the second to supply illustrations of the modes in which men think, and explanations of the language which they use,) jurisprudence and morals may come to be studied amongst us with a scientific and practical completeness unknown elsewhere. The most important part of the analysis has been already completed; and though much remains to be done in the direction indicated by Mr. Austin, his labours, and those of Bentham, have prepared the way for a vast amount of historical investigation. The combination necessary to make such investigations fruitful is a very rare one. They require not merely learning, but those powers of seeing what is essential and what is not; of entering into the modes of thought and feeling of past ages; of compressing masses of detail into broad and connected statements; and of presenting unfamiliar thoughts in a perspicuous and interesting shape, which nothing can give except careful training, varied knowledge, both of books and men,

and a mind equally skilled in investigating details and principles. Every page of Mr. Maine's book contains proofs of these qualities, and the manner in which he has executed the task which he has undertaken proves that he is fully capable of doing as much for one element of English jurisprudence as Mr. Austin did for the other.

ART. VIII.-Histoire du Consulat et de l'Empire. Tome XIX. Par M. A. THIERS. Paris: 1861.

WE E could readily understand why M. Thiers, although a parliamentary statesman, was through all his former volumes the advocate of Napoleon against his foreign opponents. But we But we were hardly prepared to find him, in the Hundred Days, the advocate of Napoleon against every other form of government in France. War and absolute rule seemed tolerable in retrospect for the sake of glory, while the head of the government was identified with the fame of the people. But, surely, the peaceful and not very illiberal misgovernment of the Bourbons was preferable to a recurrence of war and absolute rule in 1815.

M. Thiers, in the present volume, does not directly combat this proposition; but he evades it by an assumption of which he is the first author. He represents the Empire of the Hundred Days as altogether distinct from the first Empire, and as disinherited from all its traditions, except in its purple and in its prince. He paints it as a national government more than ever representing a national cause. He seems to tell us that the mind of Napoleon underwent at Elba a sort of organic change. At any rate he describes him on his return as a regenerated patriot, a converted liberal, a true Whig, an earnest advocate of representative government; and an advocate of peace also, at least (as M. Thiers in one place acknowledges) after he should have once more thrashed the insolent enemies who had dethroned him.

This is the vindication of Napoleon in 1815 according to M. Thiers; but the vindication of Napoleon is only a part of his object. The reign of the Hundred Days is here represented as the grandest experiment in what is termed constitutional government that France has ever witnessed. The Constitution then granted by Napoleon involved the largest measure of political liberty that France had ever enjoyed. Thus the

Bonapartist cause is identified with domestic freedom. Again, not only was this reign an epoch in constitutional history, but Napoleon was the representation and embodiment of the national will. The Republicans hailed him as the opponent of the priests and the nobles whom the Bourbons had restored; the Constitutional party accepted him as the head of their own political system; the monopolists recognised him as the inveterate defender of their privileges; the disbanded soldiers and the officers on half-pay knew that they would be no more neglected. The peasantry appear in one chapter as his supporters against the bourgeoisie; and the bourgeoisie appear in another chapter as his supporters against the peasantry. Such a chain of facts, in spite of some inconsistencies, directly tends to prove that the discord of the French people (with the exception of the Vendeans) was merged and forgotten in the person of Napoleon. And thus the Bonapartist cause becomes national as well as liberal. The deduction, therefore, with which every inplicit follower of M. Thiers must lay down this volume is that the Allies, in suppressing the rule of the Hundred Days, destroyed the best conditions of parliamentary government in France, and that they waged a national war with her in waging a personal war against Napoleon.

This is at least ingenious; and the ingenuity is, argumentatively speaking, not unworthy of perhaps the ablest and certainly the most popular living historian in Europe. There is no doubt that a great change in outward form distinguished the empire dissolved in 1814 from the empire of the 20th of March, 1815. This was no more than was necessary to give Napoleon a day's tenure of the throne. But the question whether he intended to abide by his Constitution in victory as well as in defeat is one on which we are at issue with M. Thiers; and the question whether, even if it were granted in good faith, it was more liberal than that already granted by the Bourbons is overlooked by him. Nor does he consider whether the general policy of Napoleon in his attempts to conciliate were not more arbitrary than that of the Bourbons, even in their fancied security. The truth is, that the nation had been so disorganised by misgovernment and revolution as to be ripe for a social war in 1815; and the fierce hostility of parties towards each other, while it enabled a master mind to turn it to his own advantage, has lent a false plausibility to the views which M. Thiers here advances. Fortunately for the truth of history we are able to confront his high-flown Imperialism with the sound, accurate, and unanswerable statements recently published by M. Duvergier de Hauranne in the second volume of his Parliamentary

VOL. CXIV. NO. CCXXXII.

K K