Page:Harvard Law Review Volume 9.djvu/331

JUSTICE ACCORDING TO LAW. . 303 the State, and a tolerable average of obedience. On the contrary, they will aim — as men do in every science and art, when once they become seriously interested in it — at an ideal maximum. But even in the most advanced polity we shall find now and then that the subtilty of forensic and judicial thought outruns the possibilities of effectual inquiry and administration. Questions are sometimes put to juries which it is hardly possible for any one not learned in the law to see the point of. In assuming a scientific character, law becomes, and must needs become, a distinct science. The division of science or philosophy which comes nearest to it in respect of the subject-matter dealt with is Ethics. But, though much ground is common to both, the subject-matter of Law and of Ethics is not the same. The field of legal rules of conduct does not coincide with that of moral rules, and is not included in it; and the purposes for which they exist are distinct. Law does not aim at perfecting the individual char- acter of men, but at regulating the relations of citizens to the com- monwealth and to one another; — and inasmuch as human beings can communicate with one another only by words and acts, the office of law does not extend to that which lies in the thought and conscience of the individual. The possible coincidence of law with morality is limited, at all events, by the range of that which theolo- gians have named external morality. The commandment, " Thou shalt not steal," may be, and in all civilized countries is, legal as well as moral ; the commandment, " Thou shalt not covet," may be of even greater importance as a moral precept, but it cannot be a legal one. Not that a legislator might not profess to make a law against covetousness, but it would be inoperative unless an ex- ternal test of covetousness were assigned by a more or less arbi- trary definition ; and then the real subject-matter of the law would be, not the passion of covetousness, but the behavior defined as evincing it. The saying ascribed (it seems apocryphally) to Dr. Keate of Eton, " Boys, if you 're not pure in heart I '11 flog you," exemplifies in a neat form the confusion of external and internal morality. The judgment of law has to proceed upon what can be made manifest, and it commonly has to estimate human conduct by its conformity or otherwise to what has been called an external standard. Action, and intent shown in acts and words, not the secret springs of conduct in desires and motives, are the normal materials in which courts of justice are versed, and in the terms of 40