287 



sential difference between the principles of positive and those of theo- 

 retical right. (/) 



NOTES. 



(a) As to the possibility of a moral science, see Locke, On the Understanding, Bk. iv, Chap, 

 ill, Sec. 18-20, from which we extract the following : " Confident I am that if men would in 

 the same method, and with the sameindifFerency, search after moral as they do after mathe- 

 matical truths, they would find them to have a stronger connection one with another, and a 

 more necessary consequence from our clear and distinct ideas, and to come nearer perfect 

 demonstration than is commonly imagined." In the future as in the past, all progress in 

 the moral sciences must consist in the recognition and utilization of this truth. 



It is, however, to be understood that, in matters already determined by the received or 

 positive morality of the people, it is not the function of political science directly to control the 

 action of government, but indirectly only, by correcting and developing the general con- 

 science ; and that all the principles of theoretical jurisprudence are to be received subject to 

 this qualification. To use the metaphor of Pindar, Nomas only is king, reason but his coun- 

 selor. 



(6) The two classes of rights are more commonly called, respectively, rights in rem and 

 rights in personam. 



(c) The proposition in the text is illustrated by the argument of Fichte, Science of Law, 

 p. 137. " If," he says, " reason is to be realized in the sensuous world, it must be possible 

 for many rational beings to live together as such ; and this is permanently possible only if 

 each free being makes it its law to limit its own freedom by the conception of freedom of all 

 others." 



(d) It is admitted by Mr. Spencer that he was anticipated in his theory, or rather method, 

 by Kant ; but in fact both were anticipated by Hobbes. 



"Among the tracks pursued by multitudinous minds in the course of ages," says Mr. 

 Spencer, " nearly all must have been entered upon if not explored. Hence the probability 

 is greatly against the assumption of entire novelty in any doctrine. The remark is sug- 

 gested by an instance of such an assumption erroneously made. 



" The fundamental principles enunciated in the chapter entitled ' The Formula of Jus- 

 tice,' is one which I set forth in Social Statistics : ' The Conditions Essential to Human 

 Happiness Specified and the First of Them Developed,' originally published at the close of 

 1850. I then supposed that I was the first to recognize the law of equal freedom as being 

 that in which justice, as variously exemplified in tlie concrete, is summed up in the abstract. 

 I was wrong, however. In the second of two articles entitled ' Mr. Herbert Spencer's Theory 

 of Society,' published by Mr. F. W. Maitland (now Downing Professor of Law at Cam- 

 bridge) , in Mind, Vol. viii (1883) , pp. 508, 509, it was pointed out that Kant had already enun- 

 ciated, in other words, a similar doctrine. Not being able to read the German quotations 

 given by Mr. Maitland, I was unable to test his statement. When, however, I again took 

 up the subject, and reached the chapter on ' The Formula of Justice,' it became needful to 

 ascertain definitely what were Kant's views. I found them in a recent translation (1887) by 

 Mr. W. Hastie, entitled The Philosophy of Laic, An Exposition of the Fundamental Principles 

 of Jurisprudence as the Science of Right. In this, at p. 45, occurs the sentence : ' Right, there- 

 fore, comprehends the whole of the conditions under which the voluntary actions of any 

 one Person can be harmonized in reality with the voluntary actions of every other Person 

 according to a universal Law of Freedom.' And then there follows this section : 



" ' Universal Principle of Eight. 



" ' Every Action is right -vihich. in itself, or in the maxim on which it proceeds, is such that 

 it can co-exist along with the Freedom of the Will of each and all in action, according to a 

 universal Law. 



