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PREFACE.¹
(By SARAH AUSTIN.)

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It seems necessary that I should endeavour to justify the step I have taken, in bringing before the public writings of such a nature and value as those of my deceased husband. I have also to explain why I have determined to publish them in the incomplete and unfinished state in which he left them. The latter decision was, indeed, a necessary consequence of the former; since I could hardly be guilty of the irreverence and presumption of attempting to correct or alter what he had written.

I respectfully offer these explanations to the few to whom it is fit that any mention of such a man should be made; and I beg them not to think me so careless of his fame as to have lightly and unadvisedly undertaken to do what might lower the reputation which (almost in spite of himself) he has left among them. To their judgment and candour I commend these imperfect remains. Whatever defects they may find, let them be assured he would have found more and greater.

It is well known to all who are interested in the science of Jurisprudence, that the volume of which the present is a republication has for many years been out of print. From the time this was known, earnest and flattering entreaties that he would publish a second edition reached him from various quarters. They were sufficient to stimulate any vanity but his.

Unfortunately they came too late. The public, or that small portion of it which interests itself in such subjects, did not discover the deep and clear stream of legal science within its reach, till its waters had been diverted into other channels, or had disappeared altogether. In proportion as the demand for the book became urgent, more years and more occupations 2were interposed between the state of mind in which it was written, and that in which this demand found him. Above all, the hope, the animation, the ardour with which he had entered upon his career as a teacher of Jurisprudence, had been blighted by indifference and neglect; and, in a temper so little sanguine as his, they could have no second spring.

It was not my intention to enter into the particulars of a life of which there is little but disappointment and suffering to relate, and which, from choice as much as from necessity, was passed in the shade. Nothing could be more repugnant to a man of his proud humility and fastidious reserve than the submitting his private life to the inspection of the public; nor would it consist with my reverence for him to ask for the admiration (even if I were sure of obtaining it) of a world with which he had so little in common.

But as, influenced by considerations which have appeared to me, and to these of his friends best qualified to advise, conclusive, I have determined to republish the following volume, and to publish the rest of the series of Lectures of which those herein contained form a part, it appears necessary to give some explanation of the state in which he left them; to tell why the work which the Author meditated was never completed; why the portion already in print was so long and so obstinately withheld from the public; and, lastly, what has determined me to take upon myself the arduous task of preparing these materials for the press. In order to do this, I must relate those passages of his life which are immediately connected with the course of his studies; and also, though with infinite pain, must touch upon the qualities, or the events, which paralysed his efforts for the advancement of legal science and the diffusion of important truths.

If I dwell longer upon his personal character than may be thought absolutely necessary to my purpose, my apology, or my justification, will be found in the words of a writer who understood and appreciated him:—

‘His personal character was, or ought to have been, more instructive in these days than his intellectual vigour. He lived and died a poor man. He was little known and little appreciated, nor did he seek for the rewards which society had to give; but in all that he said and did there was a dignity and magnanimity which conveyed one of the most impressive lessons that can be conceived as to the true nature and true sources of greatness.’

3 At a very early age Mr. Austin entered the army, in which he served for five years; a fact which would have no place here, but for the permanent traces it left in his character and sentiments. Though he quitted it for a profession for which his talents appeared more peculiarly to fit him, he retained to the end of his life a strong sympathy with, and respect for, the military character, as he conceived it. The high and punctilious sense of honour, the chivalrous tenderness for the weak, the generous ardour mixed with reverence for authority and discipline, the frankness and loyalty, which were, he thought, the distinguishing characteristics of a true soldier, were also his own; perhaps even more pre-eminently, than the intellectual gifts for which he was so remarkable.

Mr. Austin was called to the Bar in 1818. If confidence in his powers and prospects could have been given to so sensitive and fastidious a mind by the testimony and the predictions of others, he would have entered on his career with an undoubting and buoyant spirit; for every one of the eminent lawyers in whose several chambers he studied, spoke of his talents and his application as unequalled, and confidently predicted for him the highest honours of his profession.

But he was never sanguine. Even in the days when hope is most flattering, he never took a bright view of the future; nor (let me here add) did he ever attempt to excite brilliant anticipations in the person whom he invited to share that future with him. With admirable sincerity, from the very first, he made her the confidante of his forebodings. Four years before his marriage, he concluded a letter thus:—‘… and may God, above all, strengthen us to bear up under those privations and disappointments with which it is but too probable we are destined to contend!’ The person to whom such language as this was addressed has, therefore, as little right as she has inclination to complain of a destiny distinctly put before her and deliberately accepted. Nor has she ever been able to imagine one so consonant to her ambition, or so gratifying to her pride, as that which rendered her the sharer in his honourable poverty.

I must be permitted to say this, that he may not be thought to have disappointed expectations he never raised; and that the effect of what I have to relate may not be enfeebled by the notion that it is the querulous expression of personal disappointment. Whatever there may be of complaint in this brief narrative, is excited by the recollection of great qualities un4appreciated, great powers which found no congenial employment, great ardour for the good of mankind, chilled by indifference and neglect; by the recollection of the struggles and pangs of an over-scrupulous and oversensitive spirit, vainly trying to establish, alone and unsustained, the claims of a science which he deemed so important to mankind. Nor is the sorrow of an immeasurable private loss so engrossing as not to be enhanced by regrets at the loss sustained by the world.

It became in no long time evident to one who watched him with the keenest anxiety, that he would not succeed at the Bar. His health was delicate: he was subject to feverish attacks which left him in a state of extreme debility and prostration; and as these attacks were brought on by either physical or moral causes, nothing could be worse for him than the hurry of practice, or the close air and continuous excitement of a court of law.

And if physically unfitted for the profession he had chosen, he was yet more disqualified by the constitution of his mind. Nervous and sensitive in the highest degree, he was totally deficient in readiness, in audacity, in self-complacency, and in reliance on the superiority of which he was conscious, but which oppressed rather than animated him. He felt that the weapons with which he was armed, though of the highest possible temper, were inapplicable to the warfare in which he was engaged; and he gradually grew more and more self-exacting and self-distrusting. He could do nothing rapidly or imperfectly; he could not prevail upon himself to regard any portion of his work as insignificant; he employed a degree of thought and care out of all proportion to the nature and importance of the occasion. These habits of mind were fatal to his success in business.

Indeed, even before his call to the Bar, he had detected in himself the germ of the peculiar disposition of mind which disqualified him for keeping pace with the current of human affairs. In a letter addressed to his future wife, dated 1817, when he was still in the chambers of an Equity Draftsman, he wrote, ‘I almost apprehend that the habit of drawing will in no short time give me so exclusive and intolerant a taste (as far, I mean, as relates to my own productions) for perspicuity and precision, that I shall hardly venture on sending a letter of much purpose, even to you, unless it be laboured with the accuracy and circumspection which are requisite in a deed of conveyance.’

But ‘the habit of drawing’ did not create, though it might develope, this tendency to exact from himself a degree of perfection incompatible with promptitude and dispatch. He was, 5as he says, intolerant of any imperfection; and so long as he could descry the smallest error or ambiguity in a phrase, he recast it again and again till his accurate mind could no longer suggest an objection or a difficulty. This was not the temper which could accommodate itself to the imperious demands of business. After a vain struggle, in which his health and spirits suffered severely, he gave up practice in the year 1825.

In the year 1826, the University of London (now University College) was established. From the character and objects of this institution it appeared to hold out a hope, that not only classes of persons, but branches of science, excluded from the ancient universities, might find admittance and fostering in this. Among the sciences which it was proposed to teach, was Jurisprudence, and Mr. Austin was chosen to fill that Chair. As soon as he was appointed, he resolved to go to Germany, in order to study on the spot what had been done, and was doing, by the great jurists of that country, for whom he had already conceived a profound admiration. He immediately set about learning the language, and had already made some progress before he left England. In the autumn of 1827, after visiting Heidelberg, he established himself with his wife and child at Bonn, which was then the residence of Niebuhr, Brandis, Schlegel, Arndt, Welcker, Mackeldey, Heffter, and other eminent men, from whose society he received equal pleasure and instruction. Mr. Austin secured the assistance of a young jurist, who had just entered on that stage of the professional career in which men are permitted to teach, without holding any appointment. They are called Privatdocenten, and are a sort of tutors. By reading German lawbooks with this gentleman, Mr. Austin, while pursuing his main object, speedily acquired the language with that precision and completeness which he carried into everything he studied.

He also, as I find from some slight memoranda, took great pains to inform himself thoroughly of the discipline and mode of teaching in the German Universities. He often expressed his earnest desire to carry home, for the use of England, whatever were most worthy of imitation in Germany. He left Bonn in the spring of 1828, master of the German language and of a number of the greatest works which it contains. He always looked back upon his residence there as one of the most agreeable portions of his life. He and those belonging to him, who were then the only English established at Bonn, were received with cordiality by this distinguished society, and found there 6the qualities most consonant to their tastes: respect for knowledge, love of art, freedom of thought, and simplicity of habits. Spite of the hopes, the projects, and the acquirements with which he entered upon his new functions, it was not without much regret and some forebodings that he quitted a life so full of interest and so free from care, for the restraints and privations which London imposes on poor people, and for the anxieties of a laborious and untried career.

Yet everything promised well, excepting always his health, which had suffered extremely from his anxiety before quitting the Bar, and was only partially restored by the comparative tranquillity of mind which followed his appointment, and by his salutary and agreeable residence on the Rhine.

His Lectures opened with a class which exceeded his expectations. It included several of the men who are now most eminent in law, politics, or philosophy. He was much impressed and excited by the spectacle of this noble band of young men, and he felt with a sort of awe the responsibility attaching to his office. He had the highest possible conception of the importance of clear notions on the foundations of Law and Morals to the welfare of the human race; the thought of being the medium through which these were to be conveyed into so many of the minds destined to exercise a powerful influence in England, filled him with ardour and enthusiasm. As might be expected from his susceptible nature and delicate conscience, these were not unmixed with anxiety too intense for his bodily health.

Some notes, which I find in a blank leaf of the First Lecture delivered at the London University, are so strongly imbued with his earnest and ardent devotion to his work, that, not without some hesitation, I resolve to give them exactly as they stand. Even the broken sentences are characteristic, and, to those who knew him, inexpressibly touching. To such, they will vividly recall the man whose passionate love of truth and knowledge is apparent even in these hasty words.

I find in the manuscript numerous passages marked v. v. which he evidently meant to expand or analyze extemporaneously.

He now appeared to have attained to a position above all others the best suited to him. His peculiar tastes and talents fitted him for the business of a teacher. His power of methodising and expounding was matchless; and he had a natural and powerful eloquence (when he allowed himself to give way to it), which was calculated to rivet the attention and fix itself on the memory. This was far more striking in conversation than in his written lectures. As soon as he reduced anything to writing, the severity of his taste and his habitual resolution to sacrifice everything to clearness and precision, led him to rescind every word or expression that did not, in his opinion, subserve these ends.

Perhaps no man was ever more eminently qualified to raise extemporaneous discourse to the highest excellence, had he but combined with his other singular qualifications that of easy confidence and self-satisfaction. His voice was clear and harmonious, and his elocution perfect. Nobody ever heard him talk without being powerfully struck with the vigour and originality of his discourse, the variety and extent of his knowledge, and the scholarlike accuracy and singular appositeness of his language. Classical thoughts and turns of expression were so familiar to him that they seemed innate and spontaneous. ‘I think,’ writes a friend to whom I have shown this poor attempt to describe him, ‘that you have hardly said enough about his eloquence in conversation. But the truth is, that it is impossible to describe the manner in which one was carried 8away and utterly absorbed by his talk. One had travelled in an hour over such vast regions, and at such an elevation! And then the extraordinary extent and exactness of his memory!’ It is true that I shrink from the attempt to convey an idea of his eloquence in common discourse. It lives in the remembrance of a few. His memory was most extraordinary, and would have been a gift to dwell on with wonder, had it not been so subordinate to his higher faculties. He never made any display of it; and as it was always under the control of his severe love of truth, his hearers were certain that he hazarded nothing, and that his statements might be implicitly relied on.

But those qualities which, above all others, smooth the road to success, were not to be looked for in a character like his. Proud, sensitive, trying everything by the lofty standard he bore within him, it was only to a very peculiar sort of encouragement that he was accessible. The highest applause or admiration of ignorant millions would have failed to give him the smallest satisfaction. The approbation of the few whose judgment he respected, or the persuasion that his labours tended to general utility, were the only stimulants by which he could be enabled to rise above his constitutional shyness and reserve.

It soon became clear that he was as far as ever from having found the modest, but tranquil and secure position, in which he might continue to labour for the advancement of the sublime science of which he knew himself to be so consummate a master.

It was not to be expected,—it is never found, even in the country where science is most ardently pursued for its own sake,—that studies which have no direct bearing upon what is called practical life, can, except under very peculiar circumstances, attract numerous audiences. Where, therefore, there is any serious intention that the few who addict themselves to such studies should find competent instructors, funds are provided for the maintenance of men who have obviously nothing to expect from popular resort. Their position is perhaps not brilliant, but it is secure and honourable, and affords them leisure for the prosecution of their science. No such provision was, however, made for the Chair to which Mr. Austin had been elected; and as jurisprudence formed no part of the necessary or ordinary studies of a barrister, his professorship became nearly an empty title.

9 ‘In spite,’ says the illustrious writer of a notice of Mr. Austin’s death, in the ‘Law Magazine,’ ‘of the brilliant commencement of his career as a Professor, it soon became evident that this country would not afford such a succession of students of jurisprudence as would suffice to maintain a Chair; and as there was no other provision for the teachers than the students’ fees, it followed of necessity that no man could continue to hold that office unless he had a private fortune, or combined some gainful occupation with his professorship. Mr. Austin, who had no fortune, and who regarded the study and exposition of his science as more than sufficient to occupy his whole life, and who knew that it would never be in demand amongst that immense majority of law students who regarded their profession only as a means of making money, found himself under the necessity of resigning his Chair.’²

Such was the end of his exertions in a cause to which he had devoted himself with an ardour and singleness of purpose of which few men are capable. This was the real and irremediable calamity of his life—the blow from which he never recovered. His failure at the Bar was nothing, and would never have been regretted by himself or those who cared for him. That was not his vocation, nor had he any peculiar aptitude for it; and there was no want of able and successful barristers. There was no one to do the work he could have done, as an expounder of the philosophy of Law.

At the time he wrote his Lectures, constructed the Tables (hereafter mentioned), and prepared this volume for the press, I can affirm that he had no other thought, intention, or desire, than to push his inquiries and discoveries in the science of law as far, and to diffuse them as widely, as possible. It was from no unsteadiness of purpose, no shrinking from labour, no distaste to a life of comparative poverty and obscurity that he abandoned the pursuit to which he had hoped to devote his life. If there had been found for him some quiet and humble nook in the wide and rich domains of learning, it is my firm conviction that he would have gone on, slowly indeed, as the nature of his study and his own nature rendered inevitable, and with occasional interruptions from illness, but with unbroken tenacity and zeal, to the end of his life.

In June, 1832, he gave his last lecture. In that year he published the volume, of which the present is a reprint. So far was he from anticipating for it any brilliant success, that he was 10astonished at the readiness and liberality with which the late Mr. Murray undertook the publication of it; and for years afterwards his anxiety was extreme, lest it should have entailed loss upon that gentleman. When at length, in answer to my inquiries, Mr. Murray presented to me the last remaining copy, as a proof that our fears were groundless, Mr. Austin expressed perfect satisfaction, and something like surprise, even at this very moderate success. He was fully aware of the unpopularity of the studies to which he had devoted himself.

It must be admitted that the reception given to his book at first was not encouraging. Neither of the Reviews which profess to guide public opinion on serious subjects took the slightest notice of it. Some eulogistic articles appeared in journals of less general currency, but on the whole it may be said to have been left to make its way by its own merits. It was only at a later period, and by slow degrees, that they were appreciated.

In the year 1833 Mr. Austin was appointed by Lord Brougham, then Lord Chancellor, member of the Criminal Law Commission. Though this turned him from the pursuit to which he had hoped to dedicate his life, and confined his inquiries to a narrower and less inviting field than that he had marked out for himself, he entered upon it with the same conscientious devotion, and carried into it the same profound and comprehensive views. But he soon perceived that they would be of small avail to himself or to the public. The powers granted to the Commission did not authorise the fundamental reforms from which alone he believed any good could come; and his opinions as to the ground to be marked out, and the foundations to be laid, before any satisfactory structure of criminal law could be raised, differed widely from those of his colleagues. He had little confidence in the efficacy of Commissions for constructive purposes. He said to me, ‘If they would give me two hundred a year for two years, I would shut myself up in a garret, and at the end of that time I would produce a complete map of the whole field of Crime, and a draft of a Criminal Code. Then let them appoint a Commission to pull it in pieces.’ He used to come home from every meeting of the Commission disheartened 11and agitated, and to express his repugnance to receiving the public money for work from which he thought the public would derive little or no advantage. Some blurred and blotted sheets which 1 have found, bear painful and affecting marks of the struggle that was going on in his mind, between his own lofty sense of dignity and duty, and those more ordinary notions which subordinate public to private obligations. I have also found the commencement of a project of a Criminal Code drawn up at that time.

About the same time, he had arrived at the conviction that, as a teacher of Jurisprudence, he had nothing to hope. The insufficiency of the legal education of the country had for some time attracted the attention of the more enlightened part of the profession; and it was at length determined, by the Society of the Inner Temple, that some attempt should be made to teach the principles and history of jurisprudence. Among the most earnest promoters of this scheme was Mr. Austin’s friend, Mr. Bickersteth, afterwards Lord Langdale. In the year 1834, Mr. Austin was accordingly engaged to deliver a course of lectures on jurisprudence at the Inner Temple. Had this appointment been made under different conditions, it was one which he would have preferred to any other, however distinguished or however lucrative. Unfortunately, it was not of a kind to give him the security and confidence he wanted. He was invited to undertake the discouraging task of trying to establish a new order of things, without the certain, though distant, prospect which usually cheers the pioneer in such an enterprise. His appointment could only be regarded as an experiment. This uncertainty weighed upon him from the first. He was, as I have said, disqualified by nature from all work of a passing and temporary sort; and in order to labour with courage and animation, he needed to see before him a long period of persistent study, and security from harassing anxiety. His precarious health and depressed spirits required every possible support; and he was but too easily disheartened at what he thought the want of confidence in the scheme, or in him, evinced in a merely tentative appointment.

It was also clear that the same causes which rendered the appointment to a Chair of Jurisprudence abortive at the London University, were in operation (perhaps to a still greater extent) in the Inns of Court. The demand for anything like scientific legal education had to be created. The eminent lawyers who had adorned the English bar and bench (of whose great faculties no one had a higher admiration than Mr. Austin) had been 12formed by a totally different process; and the young men entering on the profession were, for the most part, profoundly indifferent to any studies but those which had enabled their predecessors to attain to places of honour and profit. Thus depressed by failure; unsustained by sympathy in his lofty and benevolent aspirations, or by recognition of his value as a teacher; agitated by conflicting duties, and harassed by anxiety about the means of subsistence, it is no wonder that his health became sensibly worse. The severe feverish attacks to which he had always been subject, became more and more frequent and violent; and often, after preparing a lecture with great care and intense application, he was compelled, on the day when it should have been delivered, to send messengers round to the gentlemen of his class, to announce his inability to attend. He soon saw the inutility of struggling against such obstacles. He resolved to abandon a conflict in which he had met with nothing but defeat, and to seek an obscure but tranquil retreat on the Continent, where he might live upon the very small means at his disposal.

He quitted England with a strong feeling of the disadvantage at which a man like himself, devoted exclusively to truth and to the permanent good of mankind, stood, in a country where worldly success is not only the reward, but the test of merit; and where, unless he advances in certain beaten tracks, he arrives at nothing, except neglect and a sort of contemptuous wonder. He felt this keenly, and said to the one person to whom he ever talked freely of himse1f, ‘I was born out of time and place. I ought to have been a schoolman of the twelfth century—or a German professor.’ The position of such illustrious and revered teachers as Hugo and Savigny seemed to him the most enviable in the world. The pecuniary inferiority of such a position, compared with the profits attending the practice of law in this country, was not a consideration to which his mind could easily descend.

He had been settled at Boulogne about a year and a half, when a proposal was made to him by the Colonial Office, through his much esteemed and faithful friend Sir James Stephen, to go to Malta as Royal Commissioner, to inquire into the nature and extent of the grievances of which the natives of that island complained. He accepted an appointment for which he was indeed peculiarly fitted. Justice and humanity were parts of his nature, and were fostered by reason and by study. He had no sympathy with the insolence of a dominant race, and 13he was not likely to view with indulgence, violations of the conditions under which England had accepted the voluntary cession of Malta by its inhabitants. On the other hand, his sagacity, knowledge, and strict sense of justice rendered him inaccessible to fantastic schemes or groundless complaints. Aided by his able and accomplished colleague Mr. (now Sir) George Cornewall Lewis, he rendered to the island services which attracted little attention in England, but are remembered with lively and affectionate gratitude in Malta.

He had the satisfaction of seeing every measure he recommended adopted by the Colonial Office; and he always looked back with great satisfaction to his connection with two men for whom he entertained so sincere a respect as Lord Glenelg and Sir James Stephen. But here another disappointment awaited him. After the reform of the tariff (which Sir James long after called, ‘the most successful legislative experiment he had seen in his time’), and of various parts of the administration of the island, Mr. Lewis having been recalled to England to preside over the Poor Law Board, Mr. Austin was preparing to enter upon his more peculiar province,—legal and judicial reform. Lord Glenelg, however, was no longer in office, and the Commission was suddenly brought to a close by his successor. No reason was assigned, nor was Mr. Austin’s abrupt dismissal accompanied with a single word of recognition of his services. It remained for the Maltese to acknowledge them.³

It is indeed but too probable that the state of his health would have incapacitated him for the work he projected. But he frequently said to me, that if, as he presumed, the Colonial Office wished to put an end to the expense of the Commission, he would have continued to live in the island in a private and humble manner, till he had introduced something like order into the heterogeneous mass of laws bequeathed by the successive masters of Malta. It was, however, fortunate that he was not permitted to attempt a task to which his strength was so inadequate.

In giving this short account of his troubled life and baffled designs, my object has only been to show what were the 14circumstances by which he was forced out of the track on which he had entered, and in which his whole mind and soul were engaged; and why it was that he seemed to abandon the science to which he had devoted his singular powers with so much ardour and intensity.

It was this very ardour and intensity, this entire absorption in his subject, which rendered it impossible to him to resume, at any given moment, trains of thought from which his mind had been forcibly diverted. It belonged to the nature of his mind to grapple with a question with difficulty,—almost with reluctance. It seemed as if he had a sort of dread of the labour and tension to which, when it had once taken hold on him, it would inevitably subject him. He was frequently urged to write on matters which he had studied with an earnestness second only to that which he had devoted to his own peculiar science,—such as Philosophy, Political Economy, and Political Science generally. He usually evaded these applications; but to the person with whom he had no reserves, he used to say, ‘I cannot work so; I can do nothing in a perfunctory manner.’ He knew perfectly his strength and his weakness. He could work out a subject requiring the utmost stretch of the human faculties, with a clearness and completeness that have rarely been equalled. But he had no mental agility. When he gave himself up to an inquiry, it mastered him like an overwhelming passion. Even as early as the year 1816, he spoke to me, in a letter, of ‘the difficulty he found in turning his faculties from any object whereon they have been long and intently employed, to any other object.’ And for the same reason, when his mind had once loosened its grasp of a subject, it could with difficulty recover its hold.

At the time when a second edition of his book was first demanded, he was, as I have said, occupied in the business of the public, to which it was with him a matter of conscience to consecrate his undivided attention. To this reason for delay was now added another. His health had gradually declined, under the pressure of labour and anxiety. After his return from Malta, in 1838, he was so much worse, that in 1840 his medical friends exhorted him to try the waters of Carlsbad,—with very small hope, as they afterwards confessed, of seeing him again. From those wonder-working waters however he received so much benefit that he determined to return to them, and the summers of 1841, 1842, and 1843 were spent there. In the varied and interesting society assembled in that place, he 15made the acquaintance of many eminent persons, from whom he eagerly sought for information on the condition of their several countries. The intervening winters were pleasantly and profitably passed at Dresden and Berlin. In the latter capital he found men eminent in every branch of science, to some of whom he had long looked up as the great masters of his own,—especially Herr von Savigny. Political questions were then agitated with great warmth and acrimony in Prussia. Mr. Austin studied them with his usual industry and impartiality; and several men who were themselves engaged in the discussions of the day, were so struck with the clearness and justness of his views, that they urged him to write on the affairs of their country. I have found memoranda which show that at one time he contemplated some work of the kind. It was at Dresden that he wrote, for the ‘Edinburgh Review,’ his answer to Dr. List’s violent attack on the doctrine of Free Trade.

In 1844 he removed to Paris, attracted thither by the society and friendship of some of the distinguished men who were then the able expositors of science, or the eloquent advocates of free institutions. Shortly after, he was elected by the Institute a corresponding member of the Moral and Political Class; an honour for which he was wholly unprepared, unaccustomed as he was to any public recognition of his merits. I shall borrow the words of an illustrious friend, to describe the impression he left on some of the highest minds of France: I could add many such testimonies, but that of M. Guizot is sufficient ‘C’était un des hommes les plus distingués, un des esprits les plus rares, et un des cœurs les plus nobles que j’ai connus. Quel dommage, qu’il n’ait pas su employer tout ce qu’il avait, et montrer tout ce qu’il valait!’

In that year another earnest appeal was made to him to publish a second edition of ‘The Province of Jurisprudence.’ Letters from friends, and even from strangers, arrived, lamenting the impossibility of getting a copy, and setting forth the constantly increasing reputation of the book. But these flattering representations, which perhaps at an earlier period would have spurred him on to fresh exertions, seemed to give him little pleasure, and he rarely alluded to them. They had now to encounter the reluctance I have spoken of, to resume long-disused labour,—a labour too with which a crowd of painful recollections were associated.

To give a mere reprint of the book would have been easy enough, and it is what any one else so encouraged would 16probably have done; but Mr. Austin had discovered defects in it which had escaped the criticism of others; and with that fastidious taste and scrupulous conscience which it was impossible to satisfy, he refused to republish what appeared to him imperfections.

That he had long meditated a book embracing a far wider field, I well knew; but I feared that this great work would never be accomplished, and would have gladly compounded for something far less perfect than his conceptions. But I saw that nothing could shake his resolution, and I never willingly adverted to the subject. Whenever it was mentioned, he said, that the book must be entirely recast and rewritten, and that there must be at least another volume. His opinion of the necessity of an entire refonte of his book arose, in great measure, from the conviction, which had continually been gaining strength in his mind, that until the ethical notions of men were more clear and consistent, no considerable improvement could be hoped for in legal or political science, nor, consequently, in legal or political institutions.

The subjoined prospectus or advertisement sufficiently proves that he had seriously resolved to execute the great work he had planned. I have found but one copy of it, nor have I been able to hear of the existence of another. I cannot find that it attracted any attention.

He announced the same intention in a letter to the present Chief Justice of the Common Pleas, the companion of his early studies, the beloved and faithful friend of every period of his life. It was only the other day that Sir William Erle found the following fragment of this letter, which he has had the kindness to permit me to print. Unhappily, the part containing the date is lost. It begins with a broken sentence, which must relate to one of the many applications made to him for a second edition: probably they were preceded by some such words as—

18  He had finally established himself in Paris, when the Revolution of 1848 once more uprooted him. He had watched with intense interest and anxiety the approach of the storm which was to overthrow all regular government in France; and it was from earnest observation of what passed in that country, that he became confirmed in his opinion of the difficulty, if not the impossibility, of reconstructing a society which has once been completely shattered. This opinion, together with his ardent and disinterested love of his country, found utterance in the pamphlet which he published in 1859.

He remained for some months in Paris after the Revolution, watching the course of things. As he became more and more convinced that permanent tranquillity was not to be looked for in France, and that life there would be incessantly troubled and embittered by uncertainty and alarm, he resigned himself to a serious pecuniary loss, and returned to England, determined to seek tranquillity in a small retreat in the country. He took a cottage at Weybridge, in Surrey, near enough to London for convenience, and for occasional visits from his only child, and far enough to enable him to enjoy the retirement he coveted.

Here he entered upon the last and happiest period of his life; the only portion during which he was free from carking cares and ever-recurring disappointments. The battle of life was not only over, but had hardly left a scar. He had neither vanity nor ambition, nor any desires beyond what his small income sufficed to satisfy. He had no regrets or repinings at his own poverty and obscurity, contrasted with the successes of other men. He was insatiable in the pursuit of knowledge and truth for their own sake; and during the long daily walks, which were almost the sole recreation he coveted or enjoyed, his mind was constantly kept in a state of serene elevation and harmony by the aspects of nature,—which he contemplated with ever-increasing delight, and described in his own felicitous and picturesque language,—and by meditation on the sublimest themes that can occupy the mind of man. He wanted no excitement and no audience. Though he welcomed the occasional visits of his friends with affectionate cordiality, and delighted them by the vigour and charm of his conversation, he never expressed the smallest desire for society. He was content to pour out the treasures of his knowledge, wisdom, and genius, to the companion whose life was (to use the expression of one who knew him well) ‘enfolded in his.’

Thus passed twelve years of retirement, rarely interrupted, 19and never uninteresting or wearisome. His health was greatly improved. The place he had chosen and his mode of life suited him. The simplicity of his tastes and habits would have rendered a more showy and luxurious way of living disagreeable and oppressive to him. Yet none of the small pleasures or humble comforts provided, for him ever escaped his grateful notice. He loved to be surrounded by homely and familiar objects, and nothing pleased him so much in his garden as the flowers he had gathered in his childhood. Things new or rare were unattractive, if not distasteful, to his constant and liberal nature. He had a disinterested hatred of expense, and of pretension, and, though very generous, and quite indifferent to gain, he was habitually frugal, and respected frugality in others, as the guardian of many virtues.

One regret mingled with the deep thankfulness with which this comparative freedom from pain and care was regarded by those who loved him:—he showed no inclination to devote these years of improved health and tranquil leisure to the work he had so long ago projected. But even this regret, poignant as it was, gradually subsided under the tranquillising influence of his serene contentment. It is no wonder that the person most sensible of the immense resources and powers of his mind, and most deeply interested in seeing them appreciated, could not resolve to urge him to return to long-disused labours. Suffering, from ill-health and from other causes, had pursued him, almost without intermission, throughout the early and middle part of his life; and now that he had found comparative ease of body and mind, fame, or even usefulness (so long and ardently coveted for him), faded into nothing, compared to these inestimable blessings. The calm evening that followed on so cloudy and stormy a day, was too precious to be risked for the reputation to which he was so indifferent, or for the advantage of a world to which he owed so little.

But his generous solicitude for his country did what nothing else could, and his last effort was prompted by benevolence and patriotism.

He was, in his solitude, a deeply-interested observer of political events. He viewed with great anxiety and disapprobation the various schemes of parliamentary reform brought forward during the later years of his life, and felt deeply the severe blow they gave to the respect he wished to feel for eminent public men.

Profoundly convinced as he was of the scarcity of great 20ability, and of the still greater scarcity of a disinterested love of truth, it may easily be imagined that he regarded with a sort of horror all schemes for placing the business of legislation in the hands of large bodies of men. He had followed step by step the progress of the great minds by which systems of law had been, through ages, slowly and painfully elaborated; and the project of submitting these highest products of the human intellect, or the difficult problems they deal with, to the judgment and the handling of uneducated masses, seemed to him a return towards barbarism. He, least of all men, was likely to be dazzled or attracted by wealth or rank; but he valued them on public grounds, as providing for their possessors the highest sort of education, and the leisure and opportunity to apply that education to the general culture of the human mind,—especially to the difficult sciences of legislation and government. The idea of popular legislation was to him as alarming as it was absurd; and it was precisely on account of the disastrous consequences which he was certain must result from it to the people themselves, that he felt indignant at the uses made of their ignorance, and the unmanly affectation of deference to their wishes, by those whose duty it is to enlighten and guide them. Long and accurate observation of other countries, and intercourse with their public men, had taught him the full value of the institutions of this country, and the importance of the habit of obedience to law; and he was too ardent and sincere a patriot to see these imperilled without the deepest emotion. The work of Lord Grey, which appeared in the midst of the discussions on reform, excited his warm and respectful admiration; and when it was suggested to him that he should review it, he immediately consented. The pamphlet published under the title of ‘A Plea for the Constitution,’ was originally written for a quarterly journal; but being thought unsuitable, it was published separately. Its success far exceeded his very modest expectations, and gave him the satisfaction of thinking that he had contributed something to the defeat of pernicious projects. This was the only reward he desired.

From the time that he abandoned the struggle with the world to which he was at once so unequal and so superior, all the bitterness excited in him by the chilling indifference with which his noble and disinterested efforts had been received, subsided. His estimate of men was low, and his solicitude for their approbation was consequently small. But while he kept aloof from them, his sympathy with their sufferings, and his 21anxiety for their improvement, never abated. For himself, he coveted nothing they had to give; and he awaited the judgment of another tribunal with humility, but with a serenity which became more perfect in proportion as the time for his appearing before it drew nigh.

If elevation above all the low desires and poor ambitions which chain the soul to earth, if a life untainted by a single unjust or ungenerous action or thought, a single concession to worldly or selfish objects, a single attempt to stifle or to disguise truth, could justify a serene anticipation of the world into which none of these things can enter, he might be permitted to feel it.

Having, as I hope, made intelligible to that portion of the public, capable of sympathy with a character like Mr. Austin’s, what were the causes which disabled him—or disinclined him—from entering afresh on the labour of reconstructing and greatly enlarging his book, and of knitting up all the threads which years and events, care and sickness, had tangled or broken, it only remains for me to say what are the materials he has left; what the motives that have induced me to give them to the world; and how it is that I have found myself in a manner compelled to undertake the arrangement of them for the press.

I have sometimes doubted whether it was consistent with my obedience to him to publish what he had refused to publish. I have questioned myself strictly, whether, in devoting the rest of my life to an occupation which seems in some degree to continue my intercourse with him, I was not rather indulging myself than fulfilling my duty to him. There have been times, too, when, in the bitterness of my heart, I have determined that I would bury with me every vestige of his disinterested and unregarded labours for the good of mankind. But calmer thoughts have led me to the conclusion, that I ought not to suffer the fruit of so much toil and of so great a mind to perish; that what his own severe and fastidious judgment rejected as imperfect, has a substantial value which no defect of form or arrangement can destroy; and that the benefits which he would have conferred on his country and on mankind, may yet flow through devious and indirect channels. I persuade myself that if his noble and benevolent spirit can receive pleasure from anything done on earth, it is from the knowledge that his labours are ‘of use to those who, under happier auspices, pursue the inquiry’ into subjects of such paramount importance to human happiness.

22  Having thus come to the conclusion that some of the manuscripts he left ought to be given to the public, the next question was—in what form, and by whom? My first thought was to look about for an editor, to whom I might confide the redaction of the whole; leaving to him entire discretion as to the matter and form of the publication. But it did not appear that any such person could be found, or was likely to be found. A great portion of the manuscript was in so imperfect and fragmentary a state, that it was clear that the whole must be recast and rewritten by any editor who aspired to produce a readable book, from which he could derive reputation or profit. I was alarmed at the thought of the changes the work might undergo in this process. It was to be feared that any editor who had not the self-forgetting devotion of a Dumont, would be more sensible of his responsibility towards the public than of that towards his author. There are great peculiarities in Mr. Austin’s style—not one of which was adopted without mature thought. He never had the slightest idea of rendering his subject popular or easy. He demanded from his hearers or readers the full force of their attention; and as he knew how lax and flitting the attention of most men is apt to be, he adopted every expedient for fixing or recalling it. He shrank from no repetitions that he thought necessary to keep a subject steadily and distinctly before the mind, and he availed himself of all typographical helps for the same purpose. Knowing this, I have disregarded the advice of some of those to whom I am most bound, and most disposed, to defer, in retaining the numerous italics with which his book is, in their opinion, deformed. Future editors may, if they will, remove this eyesore. They will not be bound by the deference which must govern me.

It will not be supposed that I think it necessary to call in any testimony to the value of the materials I have to produce. But those whose estimate of them is the highest, may very justly think they ought to have been put into more competent hands. This was my own opinion; and it was not without much anxious deliberation, or without consulting those of Mr. Austin’s friends upon whose judgment and solicitude for his fame he would, I knew, have had the greatest reliance, that I determined on the course I have pursued. The opinion and the advice which I received from all was essentially the same;—that all the Lectures should be published, ‘with only such revision as may remove needless repetitions;’ and that, considering the confused and fragmentary state of much of 23the manuscript, the safest editor would be the person most deeply interested in the author’s reputation, and most likely to bestow patient and reverential care on every relic left by him.

I need not repeat the terms in which Mr. Austin’s friends encouraged me to undertake the task of putting these precious materials in order, nor the offers of advice and assistance which determined me to venture upon it. One of them, who spoke with the authority of a lifelong friendship, said, after looking over a mass of detached and half-legible papers, ‘It will be a great and difficult labour; but if you do not do it, it will never be done.’ This decided me.

I have gathered some courage from the thought that forty years of the most intimate communion could not have left me entirely without the means of following trains of thought which constantly occupied the mind whence my own drew light and truth, as from a living fountain; of guessing at half-expressed meanings, or of deciphering words illegible to others. During all these years he had condescended to accept such small assistance as I could render; and even to read and talk to me on the subjects which engrossed his mind, and which were, for that reason, profoundly interesting to me.

Having determined on the course to be pursued, the first thing to be done was obviously to republish the volume already in print, which has been long and eagerly demanded. The Author’s Preface explains the matter of which this volume consists, and his purpose in publishing it I have altered nothing, except the position of the Outline, which is now placed at the beginning, instead of at the end of the book. I have inserted all the scattered memoranda I have been able to find, relating to alterations and additions which he meditated. Some of them are taken from a small paper marked ‘Inserenda.’ All these things are manifestly mere suggestions for his own use,—indications of matter which he intended to introduce or to work out. They are inserted, chiefly as proofs of the thought he had given to a more ample exposition of jurisprudence and the allied sciences; but also, not without a hope that some of them may serve as landmarks for the guidance of future explorers of the way he intended to follow.

The volume now⁴ republished includes the first ten of the Lectures read at the London University; which, though divided into that number for delivery, were (to use the author’s 24expression), ‘in obedience to the affinity of the topics,’ reduced by him to six.

There remain, unprinted, all the rest of the Lectures given at the London University. These I propose to print exactly as he left them. I shall alter nothing, and shall only make the omissions suggested above. This course is, I think, fully justified by the opinions already cited. There is also the short Course, delivered at the Inner Temple. But as this necessarily went in great measure over ground which had been traversed in the earlier Courses, it does not appear to the friends I have consulted that it will afford matter for a separate volume. It is thought that it will be expedient to collate these with the earlier and far more numerous Lectures, and to insert, as notes or appendix, any matter which is not found in those. The state of the manuscript seems to show that the author meant to incorporate them with the former; or rather, to employ both in the construction of the great work he meditated.

When Mr. Austin was preparing his lectures at the London University he drew out a set of Tables, which he had printed for distribution to the gentlemen of his class. They were never published nor sold, and were consequently unknown to the public. Nor were they ever completed. Between Tables I., II., and VIII., IX., there is a chasm,—never now to be filled. But lamentably incomplete as they are, they are pronounced by one eminent lawyer to be ‘perhaps the most extraordinary production of his mind;’ and, by all who have studied them, are thought to afford evidence of an astonishing originality of conception, extent of learning and force of reasoning. Each Table is accompanied by explanatory notes of great length. I am not without some faint hope that hints for the construction of some of the missing Tables may be found among the various scattered notes which exist.⁵

The nature and object of these Tables are described by the author in his opening Lecture, in the following words. After stating the causes which rendered an opening Lecture a useless ceremony in his case, he concludes thus:—

Lastly, I find a considerable mass of papers on Codification; an Essay on Interpretation; the ‘Excursus on Analogy,’ referred to at the beginning of Lecture V. in the present volume; and the commencement of a project of a Criminal Code, to which I have already referred.

Such are the materials laboriously brought together and marvellously wrought, which lie broken and scattered before me. The noblest designs, the highest faculties, the most unwearied industry, were employed upon them—in vain. What would have been the structure reared out of them, had the Master been enabled to execute the plan he had conceived, is now left to melancholy conjecture.

SARAH AUSTIN.

Weybridge, 1861.

In the preface to the Second Edition of the ‘Province of Jurisprudence determined,’ published two years ago, I stated what were the manuscripts remaining in my possession, in what condition they were left by Mr. Austin, and what were my intentions with regard to them. Since that time, I have been constantly occupied in preparing them for the press, and I now give them to the world under those conditions of incompleteness which I announced as inevitable.

It is unnecessary for me to repeat the reasons which determined me to undertake so arduous a work; or to apologise for the imperfect manner in which it is accomplished. I am now more than ever convinced that (however obvious the objections 26to it) this was the only safe and practicable mode of preserving these unfinished but precious materials in perfect genuineness and integrity.

I have not attempted to alter the form of the Lectures, nor to disguise the breaks and chasms in them.

In the Preface to the first volume (p. 24), I spoke of my intention of ‘collating the Course delivered at the Inner Temple with the earlier and more numerous lectures given at the London University, and inserting, as notes or appendix, any matter not found in these.’ Fortunately, the task of selection and adaptation was not left to me. On a nearer examination, I found that the author had marked with his own hand the parts of the Inner Temple Course which were to be added to, or substituted for, passages in the earlier lectures. In several places he had even cut out considerable portions from the latter, leaving a reference to the passages in the former which he intended to put in their place. I had therefore only to conform to a plan which, in this case, and I believe in this alone, was clearly and precisely marked out. The Lectures, as now printed, are, in fact, the two Courses, consolidated by himself.

A few typographical details seem to require notice.

There are some passages in the manuscript through which the author had drawn a light pencil line; not, I am sure, signifying that they were to be entirely rejected (for what he meant to be erasures are too complete to admit of a doubt), but that they were reserved for further consideration, or were to be transferred to some other place. These passages I have generally inserted, distinguishing them by brackets.

The references to books, which are extremely numerous, I have verified in every case, with the rare exception of such as were not within my reach. In some cases, where I have seen that Mr. Austin had emphatically marked the passage referred to, or had commented upon it in the margin of the book, I have quoted it. Perhaps this has been done rather too freely; but the space so occupied is not great, the books are not in everybody’s hands, and I thought it might be convenient to the reader to see the precise passage to which the author referred. Where-ever any words in these quotations are printed in italics, those words are underlined in the book.

With regard to the use of italics, capital letters, and other typographical distinctions, I am fully aware that there is a want of uniformity and consistency; and if, with my present 27experience, I had to begin my work again, there are several things which I should do otherwise. But the mass of papers was so great, the subjects treated of so difficult, and the task of arranging them so formidable, that it seemed as if a thorough and minute examination of their contents, and a mature deliberation on the details of their arrangement, would defer their publication almost indefinitely. A still more urgent motive arose from the consciousness that my own time for work cannot be long, and is extremely precarious; and the thought that I should leave these remains to a very uncertain fate, made me determine to secure the most important part of them from the chance of destruction, with as little delay as possible; a determination in which I was strengthened by those of my husband’s friends who take the warmest interest in the advancement of the science, and in the fame of the writer.

The duties imposed on the guardians of a great reputation have been the subject of much discussion, and, to myself, of much painful deliberation. The only conclusion I could arrive at is this:—Where a writer has attached great value to form, and has regarded his writings as works of art; where any considerable portion of his reputation rests upon his genius and skill as an artist, it seems an act of injustice to his memory to publish anything which had not undergone the last and highest polish of his own hand.

But where the great aim of a writer has been to correct pernicious errors, to throw light upon obscure truths, to disseminate new ideas which he believed to be of the highest concernment to mankind; where the labour he bestowed on style was bestowed solely with a view of expressing his thoughts with the greatest possible clearness and precision; where the depth, gravity, and originality of the matter have a value far beyond that of any conceivable perfection of form, the materials he had accumulated with purposes so far transcending any personal ones, ought not, however unfinished, to be consigned to oblivion.

In subjecting what is most dear and venerable to me in the world to so severe an ordeal, I would not be understood to be indifferent to form. But I have trusted confidently to qualities which no defects of form can destroy or greatly disguise. Moreover, these defects do not extend to what, in a scientific work, is of supreme importance; namely, arrangement. It will be apparent to the reader that, upon whatever new inquiry he entered, Mr. Austin’s invariable method of proceeding was, first to determine precisely its limits, and then to lay down in the 28most accurate manner the plan of arrangement to be pursued through the whole course of the investigation. And there are the clearest indications in the manuscripts themselves that this preliminary portion of his task was, in every case, most carefully and laboriously executed. Unfortunately, in many instances, the execution was carried no further; he never filled up the outline he had sketched with so masterly a hand. The notes on Criminal Law and those of Codification, for example, are in so rough and imperfect a state, that I should not have ventured to publish them, had I not been assured that they would, as models of arrangement, be of the utmost value to future inquirers.

It seems hardly necessary to repeat (yet perhaps I cannot repeat too often), that this book shows not what the author had done, but what he intended to do, and (in some degree) what he was capable of doing. I have therefore allowed various indications of his intentions to remain. I have also preserved the traces of the questionings which continually suggested themselves to his penetrating and sincere mind; and with which he was careful to qualify and limit his assertions, so long as the shadow of a doubt remained. All these are characteristic of the spirit in which he pursued science. To seem to know, or to leap to prompt and facile conclusions, was impossible to him. To arrive at knowledge by ways the most laborious, the most mortifying to vanity, and the most irritating to impatience, was the course which the rectitude of his nature irresistibly impelled him to follow.

I had also a double motive in showing how many passages were reserved for reconsideration. These very marks of doubt, while they prove the caution with which he worked, and the. process of investigation which was for ever going on in his mind, may perhaps suggest similar caution, and excite to similar mental contention in those who are to follow him. Every one of these doubts, pointing to further research and further reflection, may lead to the discovery of new truths or to the solution of unsolved problems. Such results would have been far more precious to him than any conceivable addition to his fame as a writer.

In the Preface to the first volume, I ventured to print a few disjointed sentences which appeared to me to throw light on the character of the man, and on the nature and aims of his teaching. I have since found more notes of the same kind; and, broken as they are, I give them, as showing still more clearly in what spirit and with what views he entered upon the duties of an 29 office so new to the country and to himself as that of Professor of Jurisprudence.

It will easily be understood that I have never entertained the project of rendering such a book acceptable to any but men seriously interested in the great questions of Law and Morals which lie at the foundation of human society. To the discriminating, and therefore indulgent, judgment of that narrow public which is constantly tending towards the ends my husband pursued, and through whom his labours (which to him seemed barren) may hereafter be rendered fruitful, I humbly and earnestly commend it.

I must add, with gratitude, that my labour has been cheered by an ever-increasing expression of interest in it, from men eminent in Jurisprudence, and in the moral sciences generally, 30in this and other countries;—strangers to all but the mind and character of the author as displayed in his published book. They have exhorted me not to suffer myself to be deterred by want of completeness, or by defects of style, from giving to the world ‘any, the slightest, intimations of Mr. Austin’s opinions on the subjects to which he had devoted himself,’ or of his method of inquiry and arrangement. Such exhortations coming from men whose voice is authoritative, it seemed my duty to obey.

I am indebted to several gentlemen for encouragement, counsel, and assistance: especially, I have to acknowledge the invaluable and persevering aid I have received from friends of Mr. Austin, who found time, in the midst of their own pressing avocations, to attend to my doubts and difficulties. Their sanction was peculiarly important, since they had been among the most assiduous and attentive hearers of Mr. Austin’s Lectures, and were acquainted with his modes of thinking and expression. Without such a sanction, I should hardly have dared to publish matter in which, from the state of the manuscripts, some exercise of discretion was inevitable.

It would be impertinent to affect to regard the care they have bestowed on the work in its passage through the press, as an obligation conferred on me. What they have done has been done out of reverence for the memory of the author, and zeal for the advancement of his science. Nor should I venture to make any public acknowledgment of it, did it not appear to me necessary for my own justification, and for the satisfaction of the reader.

SARAH AUSTIN.

Weybridge, April, 1863.