Practical jurisprudence : a comment on Austin

Front matter

fa

C.I

Cornell University Library K 230.C58P8

Contents

INTKODUCTION.

Jurisprudence. Uses of the Mstorical study of Eoman Law. Historical and Analytical Jurists. Sclieme of the present volume. Books referred to.

THE DEPIlflTION AND ORIGIN OF LAW.

Chapter II

Early names of Law : Eoman. Jus not jussuni. True derivation oijus. Early usage of jus. Judex and judicare. Summary. Jura. Jus =iigh.t. Derivation of Jt«s= right. Justus. PP- 16 — 28

Chapter III

Early names of Law : Eoman (continued). Lex. Derivation of lex. Lex puHica, legare, lex mancipi. Summaxj a.a to lex andi lex jpublica. Lex = body of law. . . PP. 29—40

Chapter IV

Early names of Law : Greek. Antiquity of Hellenic literature, e^/us. ed/uiTTes. Summary. dUi] in early usage. Derivation of SUij. vd/^os or vo/jUis. Conclusion. PP- ^1 — 58

CONTENTS.

CHAPTEE V.

Early names of Law : Teutonic. Moeso-Gothio : Witoth. Early EngUsh laws, ce, domas, asetnissa. a. Dom. Dom-boc. Domas and difiurres. Law, lagu, laga. Lagu, "Common law." Common law bom. folc-riht. Modern meanings of " common law." Conclusion. . . pp. 59 — 76

Chapter X

Definition : Law as to the motive for obedience. An ulterior motive to action. Motive, what? The Law of Nature. Austin's Law of Nature. Philosophical Law of Nature. Paulus. Modern Emotional Intuitionism. Grotius. Hobbes. Blackstone. Bentham's Physical Sanctions. Utilitarianism. Summary pp. 115 — 126

CHAPTER XL

Definition : Law as to its Sanction. Grotius' Voluntary law. Grotius compared with Hobbes and Blackstone. Law of God not law in the ordinary sense. Positive law, what? Sanction not remuneratory. Explanation of the term Sanction. Conclusion pp. 127 — 134

CONTENTS. IX

Chapter XII

Definition : Austin. Law proper, positive, and strictly so called. Positive moral rules proper and improper. Conclusion. . . -pp. 135 — 140

Chapter XIII

Law, as between tlie Elements of a State. State or Nation. The Social Contract : Grotius, Hobbes. The Family. From Family to Gens. Anstia's subordinate political society. General course of national or political association. First common rules of conduct. The popular Assembly. The Council and Judges. Sir H. Maine. ... ... pp. 141 — 156

Chapter XIV

Law, as between the Members of a, State. What constitutes a State? Sovereignty of all impossible. Sovereign not necessarily sole. Sovereignty not primary or original. Analysts' definition good, for a fully formed State. Origia of Legislation. Subdivision of Sovereignty. Definition of a State. The objection to Austin's definition of Law. Customary and Constitutional Law. Blaokstone's Municipal Law. Conclusion. "Civil" or Municipal Law. Ambiguous meaning of " Sovereign." ... pp. 157 — 176

Chapter XV

Law, as between States. International Law Ancient and Modern. Amphictionies. Fetiales. Jus Gentium. Name of International Law. Public and Private International Law. Law or not Law. Hobbes. Grotius. Blaokstone. Austin on International Law. Practical sanctions of International Law PP. 177—187

Chapter IV

Special Characteristics of Case-Law: the Grounds of Judicial Decision. Hale's Constituents of the Common Law. Application of existing rules. Interpretation Authoritative or Doctrinal. Mode and means of Interpretation. Context. Ratio Legis. Intrinsic Merit. Spurious Interpretation. Austin on Spurious Interpretation. Its history. The term Equity as applied to Interpretation. The "Eeason of the thing" or Equity. Precedents pp. 227 — 246

Chapter IX

Text-book Law : Roman Prudentes. Distinction of Prudens and Patronus. The Pontiffs the first Prudentes. The legis actiones. The old jus civile. The Prudentes as Professors. The Prudens as Jurum conditor. 'First actual text-books. The licensed Prudentes. Hadrian. Later licensed Prudentes. The Prudentes in the Digest pp. 282 — 299

Chapter X

Text-book Law : Early English Prudentes. The Conquest our starting-point. Glanville. The Laws of Edward, WiUiam and Henry. Glanville's Unwritten Law. Braoton. Eleta. Britton. Littleton. Staunforde. Listitutional works. Coke. Hale. Blaekstone. . . . pp. BOO — 315

Chapter XI

Text-book Law: English Customary Law. Theory. Customs general, particular, peculiar, and notorious. Disuse. Present English Customary Law pp. 316-323.

CONTENTS.

Chapter XII

Text-book Law : General Bemarks. Text-book Law "Unwritten." Jus moribus constitutum. Basis of Customary Law. Austin. Consensus utentium. What Customs are Law? Savigny. HoEand. Jtis a prudentibus compositum. " Singular " law. Modern Text-book writers, on International, Constitutional and " Magisterial " Law pp.324 — 339

CHAPTBE XIII.

Jus Gentium and Equity : the Praetor's Edict. Jus Oentium. Savigny. Peregrini. Austin's jus gentium. The Praetor Urbanus. The second Praetor. Eirst issue of Annual Edicts. Arguments against a distinct second Edict. Edictum Perpetuum. Summary. .... pp. 3i0 — 352

Chapter XIV

The Eoman Jus Gentium. Lateness of the idea. Austin. Meaning of Gentium. Jus civile. Cicero's Jms Gentium. That of the classical jurists. Sum m ary pp. 353 — 363

Chapter XV

The Eoman Aequitas and the English Equity. Austin's Aeguitas. That of the Eomans. Later meanings of Aequitas and Equity. Aeguitas as Interpretation. Aequitas est laxamentum juris. Aequitas naturalis. Enghsh Equity . -pp. 364—379

Chapter XVI

Codification. Treatment of the subject. The end or object of Codification. The means to the end. All or none. A preliminary Digest. Jus moribus constitutum. Jus u. prudentibus compositum and Case-Law. The Code. Provision for the future. pp. 380 394

General Index pp. 395 — ^qO

Index to Austin pp. 401 j.03

PRACTICAL JURISPRUDENCE;

A COMMENT ON AUSTIN.

INTEODUCTION.

Jurisprudence may, for the purposes of this work, be briefly defined as the science of law in general. The name has sometimes been applied to the knowledge of a particular body or system of law : but Professor Holland' appears to be perfectly right in objecting to this application, and in consequently discarding the division of J urisprudence into general and particular. The meaning of the adjective practical, which, though not a perfectly satisfactory expression, has been employed for want of a better, will be seen from the first pages of Chapter I.

Uses of the historical study of Roman Law. To some English students of Eoman Law, as perhaps to Englishmen in general, the only practical use of the study will at first sight appear to lie in the two facts, that many rules of the Corpus Juris have been, as was always acknowledged^ adopted into Continental Law, and that a few of such rules — more than was, until recent times, imagined — have been adopted into our own. Under this point of view, the attention will natu-

1 Jurisprudence, p. 9.

C. J. 1 t INTRODUCTION,

rally be directed, almost exclusively, to the results of Justinian's legislation, as constituting the only body of Roman Law known, in any extent, to its adopters into our modern systems. But it will soon be found that a thorough understanding of the complicated organism, or rather the congeries of unorganised matter, which the Byzantine emperor has left us, is perfectly impossible ' without reference to an earlier stage — to a more logical developemeut of the whole and a more natural correlation of the parts, which were to some extent obscured by the arrangement of Justinian's compilers. Hence the value justly attached to Niebuhr's great discovery of the older Institutes of Gains: hence the continual attempts to reconstruct even a skeleton of the Praetor's Edict, out of the fragments scattered through the Digest. Again, the Edict itself was in the main an amplification of the Twelve Tables; while the Twelve Tables were a partial codification of customary law dating from the very commencement of the Eoman polity. For much of that customary law, too, which subsisted to the end in an uncodified form, we depend, as in the case of England, upon very general statements of Institutional writers, needing to be helped out by such scanty record of form and procedure as has been incidentally preserved in the works of historians or antiquaries. With a view, then, to the mere knowledge of the law as left by Justinian, no study of that law per se can altogether dispense with the historical method, which traces each rule as far as possible from its original source. Such a method is no mere unpractical curiosity or dilettante antiquarianism, but a needful study of the elements composing that vast and vague structure whose fragments are built into every legislature of the civilised world.

Thus much for Roman Law, as the source of rules actually existing at the present day: from which point of view, I must however admit that the utility of this study is less in

England than it is in Scotland, in most of the Continental nations, and in several of our colonies. Into the latter sj'stems considerable portions of the Roman law (at least of the civil, as distinguished from the criminal, part) have been transferred without much alteration. With us, the generalisations upon particular classes of cases, worked out before our eyes in the Digest, are models of practical good sense, so that the reasoning upon which they are based must be of use in similar circumstances. Not, however, being recognised as authoritative, they are but slightly employed by our text-writers and still less by our practising lawyers. Amongst the former, perhaps, an increasing deference to the dicta of the classical jurists is perceptible. But, on the whole, if individual rules in detail were all that we got from the study of Roman Law, it might be justly questioned si le jeio vaut la chandelle.

By far the wider titility of the subject lies in its connexion with Jurisprudence, from which the study of Roman Law can never be separated without the greatest detriment to both ; coupled with which, that study is most profitable towards the acquisition of sound principles and clear ideas as to law in general. In order to such acquisition there appears to me to be, at the present time, special need of that historical method which I have just advocated.

The bistorical school of modem jurists, dating from Savigny and Hugo, apparently arose by way of revolt against a previous philosophical school, whose members were represented as cutting themselves adrift from experience, and preferring the evolution of a system out of principles dependent merely on their own consciousness. The synthetic method, which starts from assumed first principles and prime agents, working down to what is, whether attributed with perfect justice or not to the particular philosophers of whom I speak, ■ has always had its adherents among the earlier jurists. Even

1—2 the great work of Grotius is an instance of it; though Grotius generally endeavours to confirm his positions and conclusions by reference to historical fact.

A later developement of this revolt against the synthetic method is to be found in our English Analytical jurists, who seek, instead of building up a structure from assumed first principles, to take law simply as it is, and to analyse the actually existing legal ideas and conceptions.

Neither of the two principal analysts appears to me, speaking with great deference, satisfactorily to perform this task. For Bentham, his follower Austin claims the merit of belonging to the historical school. That this claim, however, is made in a somewhat narrow and negative sense of the words will be clear at once to any one who reads the passage in question ^

Bentham was, as Sir H. Maine has pointed out, before all things a legal reformer''; his view is less of law as it is, and much less of law as it has been, than of law as it ought to be. Of the good which has actually resulted from his speculations and suggestions it is scarcely possible to speak too highly. And yet the warmest admirers of those "Principles of Legislation'' will, I think, admit that their utility might have been greater had the course run by actual legislatures been better known to their author, and had not a hastiness of assumption, almost as dangerous as a, priori reasoning, too often usurped the place of historical enquiry. This blot is, in fact, so fully admitted by Bentham's great follower, that I need not here pursue the subject further, but will come at once to that follower himself.

After a life which had so little of the well-deserved success

2 Early History of Institutions, xii. p. 343. See a very clear statement of tlie difference, in Bentham's own -words, on two meanings of the word dglit. (Trait^s T. 2. p. 1. first paragraph of Ch. 1.)

to balance so much disappointment and failure*, the work of the dead Austin is achieving results beyond what even he would have anticipated. It is undoubtedly forming a school of English jurists, possibly of English legislators also. It is the staple of jurisprudence in all our systems of legal education. Thus it comes to be read by numbers of ordinary students, apparently unable to digest such strong meat, who, neglecting the original authorities criticised by their teacher, start from his somewhat arbitrary dicta as statements of admitted fact — a treatment not more unfair to the earlier writers or injurious to the present students, than it is alien to Austin's own just and candid spirit^ Now the fault charged against Austin's Jurisprudence, as a text-book, by those of his admirers who venture to be critics as well, is this. If we accept his definition of law, his treatment of the subject has the perfect correctness of mathematical demonstration, and must therefore be always an admirable logical exercise. But, in that definition, Austin dwells so prominently upon the circumstances of legislation (or position), as to throw entirely into the shade those historical beginnings of law, which have obviously existed in all nations, as rules of human conduct, anterior to anything that can be reasonably spoken of or thought of as legislation at all. Practically, Austin considers political societies only at an advanced period of their existence, and denies the name of law to that which has been keeping them together for ages, because it does not square with his own logical conception.

Political societies, however, and their institutions do not grow up by mathematical principles nor are they governed

^ See Mrs Austin's dignified and touching memoir. Austin, Preface, pp. 1—22.

5 Instance, the pains which he took to ensure some general knowledge of Blackstone and Justinian by printing and distributing his "Tables," the extant part of which is contained, in recent editions of the Jurisprudence, at the end of the second volume, (pp. 952, 3 : 961, 2 : 1019—1021 ed. 3.)

() INTRODUCTION.

by logical rules. The genesis of law cannot but have some connexion even with its most matured and modern form : and, though it was not Austin's object to narrate the genesis of law, it is plain that very crude notions of it are often derived from his Jurisprudence. As a corrective to these notions, it may be of service to trace anywhere the continuous history of a purely national legislature ; particularly if the legislature have attracted general interest, from its intrinsic merit and enduring influence.

In the case of Rome we have such a history: the history, fairly complete, of a gradually developed system, eminently free from foreign elements, undistorted by any sudden or violent change; the work of a nation among the most practical and clear-headed, for ordinary business, that the world has ever known. The expedients and opinions of such a nation will obviously be of value, not only as a matter of legal history, but as precedents for other times in the principles of legislation, and as contributions to a clear view of practical law in general.

It has therefore appeared to me that a brief historical view of Roman Law, with express reference to Jurisprudence, or the science of law in general, might not be without utility, even to the student whose principal object is a knowledge of English Law. Such a view, to start from the beginning in order of time, suggests the following familiar sub-divisions : — 1. The Regal period, the Decemviral legislation and the Formulary system. 2. The growth and contents of the Edict. 3. The Imperial legislation, ending with Justinian.

Of these, the first and second are undoubtedly, in the present state of our literature, those which require the most attention. For their treatment, I have the materials already, to a great extent, collected, though a considerable time will be required for the arrangement of them, particularly in the case of the Edict. The third period has been repeatedly handled by writers of ability; so that it is not very material whether my powers enable me to enter on a subject to the knowledge of which I might add very little.

Scheme of the present volume. A few words are necessary, as to the contents of the present volume. After working for some time at the directly historical view of my subject — of which work a small book styled " Early Roman Law, Regal Period" was the first instalment — I have found it absolutely necessary to enter, by way of preliminary, upon some of the more general questions of that science, in relation whereto legal history has its main use.

The charge brought, in German controversy, against the historical school of jurists, has been that they live in the past, dwell exclusively upon that which was, and lose sight of that which ought to be. It was, as I have intimated, a still more serious fault, in their antagonists, which called the historical school into existence. But there is something in this charge of antiquarianism : and although, as I have attempted to shew above, the historical method is, per se, of great value for the understanding of the individual rules which have come down to us from the Romans ; yet, for its still greater value, in relation to Jurisprudence, it requires some addition, or rather some preface, to connect the present with the past, by establishing some community of ideas, and, as far as possible, some settled phraseology.

I have mentioned, above, a false philosophical method. But there is a true philosophical method — so ably inaugurated by Sir Henry Maine, that any one may well hesitate to follow, hand passibus aequis. Its field is the consideration of historical fact bearing on law, but not of one period only, or of one nation. From the comparison of law here with law elsewhere, of law as it is with law as it has been, one result at least may be expected — that reformers will set out.

armed with some practical knowledge, not with their own a priori speculations, in search of law as it ought to be.

The enquiries, however, contained in the present volume hear less directly upon the future of Legislation than upon what I have put down above as the most substantial advantage to be derived by an Englishman from the study of Eoman Law — the acquisition, namely, of clear ideas upon law in general. In point of importance, this should indeed come first, as affecting not only those who may be actively engaged in legislation but a very much larger number.

What is law, and how are we to define it? not as a matter of philosophical hypothesis but of practical fact — What have people in general meant, and what do they now mean, by this and synonymous terms ? is a question of interest, if not to every free man, certainly to every law student. The same may be said of an enquiry into the historical origin of law, and the modes in which it is made, or the forTn in which it comes down to us.

Again, what subdivisions of an immense subject have been thought useful— upon what actual differences th.ej depend — what is the importance of those differences and the resultant value of the classifications depending upon them ? These are considerations of weight both to the student who wishes to know anything of his subject, to the practitioner who wishes to be anything beyond an empiric, and to the legislator who would base his work, not on mere benevolent impulse, but on wide views of future utility drawn from past experience.

The above are the topics treated in this book. The first coincides generally with that portion of Austin's "Province of Jurisprudence Determined" (Lectt. 1 — 6), which belongs to Law as distinguished from Ethics", and a few scattered passages in his "Analysis of Pervading "Notions" « See the remarks of Sir Henry Maine, E. H. xii. pp. 369, 370.

(Lectt. 12 — 27). The long (124 pages) and important Lecture 6, whicli contains the subject-matter of the apparentlyomitted Lectures 7 — 11, enters largely into the question of the historical origin of law. And this question is so closely bound up, not only in Austin's reasoning but in the nature of things, with the definition of law, that I have been obliged, after originally adopting another arrangement, to take them together. The subject recurs, to a certain extent, in Austin's "Law in relation to its sources and the modes in which it begins and ends" (Lectt. 28 — 39). But my endeavour has been to treat this last-named portion of Austin as mainly bearing on the latter .part of the second topic mentioned above, i. e. the modes in which law is made and the form in which it comes down to us. The third topic — the subdivisions of law — coincides with Austin's "Law considered with reference to its Purposes and the Subjects with whicli it is conversant" (Lectt. 40 — 57), and the first half of the "Analysis of Pervading Notions" so far as not already considered. Lectures 18 — 27 in the last-mentioned portion of Austin's work deal mainly with psychological questions of consciousness entering into the subject of legal responsibility, which I have endeavoured to treat in a separate book '. Into the more detailed consideration of particular rights and duties which occupies several of the lectures and fragments at the end of the " Jurisprudence " I do not propose to enter. After what has been said above, I need not disclaim any wish or expectation to supersede Austin. Indeed my object throughout has been rather to systematise and preserve what seemed best in former authors, than to add fresh views of my own. But some service may certainly be done, in the present one-sided study of English jurisprudence to which I have alluded, by setting forth, in full, the passages, from

' An Analysis of Criminal Liability. Cambridge University Press, 1880.

10 INTRODUCTIOX.

other authorities, on whicli Austin comments, which are not always very easy to find, and which are accordingly, if my experience as an examiner goes for anything, very seldom found.

I have, finally, to express my thanks to Cambridge friends for many valuable suggestions and corrections — notably to Professors Cowell and Skeat. Unfortunately for me, the latter gentleman's admirable Etymological Dictionary had not appeared before the greater part of this book was in type. I have had a similar loss with regard to the new issue of Bosworth's Anglo-Saxon Dictionary.

In the case of certain books of more than one edition, it may be useful to note that the following are those to which reference is made :

Austin, Jurisprudence. 3rd ed. 1869.

Bentliam, Traites de legislation. 2nd ed. 1820.

Blaokstoue, Chitty's, with the original imaging printed in the margin.

Bracton, paging of Tottell's edition. 15G9.

Corssen, Aussprache, &c. 2nd ed. 18G8.

Curtius, OrundzUge. 5th ed. 1879.

Hale, History of the Common Law, and Analysis. Runnington. 1779.

Hobbes, Leviathan. 1651.

Holland, Elements of Jurisprudence. 2nd ed. 1882.

Maine, Ancient Law. 6th ed. 1874.

,, Early History of Institutions. 1st ed. 1875. „, Village Communities. 3rd ed. 1876.

Markby, Elements of Law, &c. 2nd ed. 1874.

Ortolan, Generalisation, Histoire, and Explication Historique des Instituts. 8th ed. 1870.

Savigny, System des heutigen Rbmischen Eechts. 1840.

Schleicher, Compendium. 2nd ed. 186G.

Spence, Equitable Jurisdiction of the Court of Chancery. 1840.

Teuffel, History of Roman literature. Wagner's translation. 1873.

PAKT I.

THE DEFINITION AND ORIGIN OF LAW.

Chapter I. Unconscious Definition In Early Names Of Law

Unconscious definition, as shewn in early names of law. In opening one of the most brilliant and dramatic of all written dialogues, Plato puts into his master's mouth words, whose affected homeliness perhaps indicates some genuine speech of that strange original. " If there ever was a fellow," says Socrates, " who, in his talks with other fellows, wanted particularly to know exactly what he was talking about, I, you must know, am, or at least I believe I am, one of those fellows \" In this artless, innocent way we come to definitions and counter-definitions, to the discomfiture of the successive definers, and ultimately to the rejection of popular views upon the particular subject, the substitution of a moral rule, and one of the most splendid theories of a future life ever conceived by man. For the object of the Gorgias is clearly didactic; it is a sermon rather than an

1 Plato, Gorgias 453. B. iydi yap. ..ha. Some such rigmarole as the above always seemed to me the only true rendering of this queer disjointed sentence which I do not for a moment believe to be corrupt.

12 UNCONSCIOUS DEFINITION

iavestigation ; for all its affected homeliness, it deals far more with exalted theory than with the actual facts of our every day world.

In all definitions of practical matters there is some danger of doing unintentionally what Plato, of course, did intentionally — of straying from the ideas and meanings of ordinary men, in pursuit of what the definer conceives to be the more logical idea or the more correct meaning. Most prejudicial would such an error be in an account of law ; which, as a matter of history, is of course confined within what is and has been, not what, either morally or logically, ought to be ; which, as a matter of present existence, comprises, among its main factors and ingredients, those very popular feelings, those very unscientific opinions, which are theoretically demolished by the dialectic of Plato, and practically shaken by the analysis of Austin.

The clearing of popular ideas — the discarding of any isolated notion obviously incongruous with those which it traditionally accompanies, is certainly desirable : still, in subjects not of speculation but of practice, to draw the tempting circle of a narrow logical definition will often be to exclude matter of indisputable reality and admitted utility.

I wish, then, in defining, or leaving half-undefined, what we understand by the Eaglish wurd laiu, and certain corresponding terms in other languages, expressly to enquire what is and has been so understood by people in general: not merely by lawyers, and, still less, by philosophers and moralists. Upon that popular understanding rest in great measure the possibilities for the origination of law and the motives for obedience to it : so far as definitions express that popular understanding they appear to be valuable : beyond, there seems, I must confess, to me, little but idle hair-splitting or mischievous dogmatism.

IN EAKLY NAMES OF LAW. 13

I use the expression, what is and has heen understood, advisedly, because an attempt to arrive at the popular understanding, which is my object, by data exclusively modern, would certainly fail, for two reasons.

First — the popular conception, the bundle of ideas connected by ordinary people with an old word, is not the work of any single generation but the growth of long time. In spite of the changes which such a conception generally undergoes, it is still a heritage of the past, and, without a reference to the past, some latent point is sure to escape us.

Nor, in the second place, can we overlook a certain disturbing effect due to the modern attempts at strict or philosophical definition. The influence of these with the literary class, and with the more highly educated class of practical men, is very great; and, though I doubt whether they po.ssess the same permanence as the popular conception, they can certaiuly cast it into the shade, and appear, for their term of existence, to supersede it.

We must, then, go back to a period preceding that of definitions, philosophical or juridical, if we wish to grasp the popular conception of law. We must avail ourselves of the unconscious definition involved in the use of the oldest and simplest names by which that conception has been expressed. These names, if we can get at their original meaning, will obviously preserve to us that property, which the men, who used the word, considered most important or most striking in the thing. An enquiry of this kind might be carried, with interest and profit, into the whole number of law-abiding peoples, past and present ; and, in proportion to its extent, would probably be the truth of the generalisation obtained. But so wide a treatment of the subject would be totally inconsistent with the space that can be devoted to it in the present work. I can only, therefore, take certain leading instances, drawn from languages within our own

1-i UNCONSCIOUS DEFINITION

ethnological circle, particularly from the Latin language and from that of our own immediate ancestors.

In considering these we have, over our predecessors, the great advantage of an immense advance in comparative philology, which has, within very recent times, grown to the position of an exact science — a science whose laws are quite sufficiently established to raise it above the popular distrust in which it is still unjustly held; whose aid is the most important that can be obtained for the solution of any historical problem belonging to a preliterary period.

Some caution, however, is obviously necessary in availing ourselves of that aid. Etymology will give us, with something approaching to certainty, the root, and therefore the general meaning, of the oldest and simplest names for law. But, that the original meaning of these names has in the course of time become considerably modified, is no peculiarity of law, as it is one of the commonest phenomena in all language of ordinary life.

A signification originally general and simple becomes, sometimes specialised, sometimes complicated with other ideas quite foreign to the original one. The later meaning can be as distinctly proved by literary usage as the former can be inferred by comparative philology. Neither can possibly be ignored, and some of the most fallacious reasoning is based upon the Procrustean forcing of an old word within the narrow limits of what was undoubtedly its first sense.