190 1 -2 TRANSACTIONS. 7 1 



but, on the other hand, it freqnently coincides with what theo- 

 logians call ' external morality '. For instance, the eighth 

 commandment of the Decalogue is a rule of ontward conduct; 

 and so is the prohibition of theft in the Criminal Code of 

 Canada. Yet the law does not punish stealino- because it is 

 an offence against God, but because it is an injury to the 

 security and well-being of the State, the conservation of the 

 latter being the sole object ot" positive law. Again, positive law 

 often makes actioHS which are morally right, legally wrong. 

 So far as abstract conceptions of right are concerned, a man 

 is at liberty to build his house of any material or in any man- 

 ner he pleases; but municipal by-laws prevent him from build- 

 ing it of wood within the limits of a prescribed fire-area. 

 " May I not drink whiskey made in Scotland? " says the 

 thirsty toper in Canada. " Not until you have paid us duty 

 thereon ," answers the Customs and Tariff Acts. '• May I not 

 marry whom I choose? " cries the disciple of Rousseau. 

 "You are not free to marry a ward-in-chancery without the 

 consent of the court," replies the law of the Little Englander. 

 And so ad inH^nintm. Aristotle (i) thought that civil 

 society was founded that its members might live righteously, 

 for, he says, " the first care of the legislator must be that the 

 citizens should be virtuous, otherwise civil society would be 

 merely an alliance for self-defence". This conception modern 

 lawyers unhesitatingly repudiate, preferring to assent to the 

 proposition of the Chmese Code (2)., viz: " that the chief ends 

 proposed by the institution of punishments in the empire 

 have been to guard against violence and injury, to repress in- 

 ordinate desires, and to secure the peace and tranquility of an 

 honest and unoffending community." 



Men cannot be legislated into righteousness; but, as 

 Ashurst, J. said over two hundred years ago (3) "it is in th'^ 

 power of the law to take from evil-minded men the ability of 



(1) Pol. Bk. III., c. 11. 

 2) Staunton's Code of China, Ixvi- 

 <3) 22 St. Tr. 23i. 



