may say, more common in legal reasoning, than to take these words
in their moral sense, at some state of the argument, and so to drop into
fallacy. For instance, when we speak of the rights of man in a moral
sense, we mean to mark the limits of interference with individual
freedom which we think are prescribed by conscience, or by our ideal,
however reached. Yet it is certain that many laws have been enforced
in the past, and it is likely that some are enforced now, which are
condemned by the most enlightened opinion of the time, or which at all
events pass the limit of interference, as many consciences would draw
it. Manifestly, therefore, nothing but confusion of thought can result
from assuming that the rights of man in a moral sense are equally
rights in the sense of the Constitution and the law. No doubt simple
and extreme cases can be put of imaginable laws which the statute-making
power would not dare to enact, even in the absence of written
constitutional prohibitions, because the community would rise in
rebellion and fight; and this gives some plausibility to the proposition
that the law, if not a part of morality, is limited by it. But this
limit of power is not coextensive with any system of morals. For the
most part it falls far within the lines of any such system, and in some
cases may extend beyond them, for reasons drawn from the habits of a
particular people at a particular time. I once heard the late Professor
Agassiz say that a German population would rise if you added two cents
to the price of a glass of beer. A statute in such a case would be empty
words, not because it was wrong, but because it could not be enforced.
No one will deny that wrong statutes can be and are enforced, and we
would not all agree as to which were the wrong ones.

The confusion with which I am dealing besets confessedly legal
conceptions. Take the fundamental question, What constitutes the
law? You will find some text writers telling you that it is something
different from what is decided by the courts of Massachusetts or
England, that it is a system of reason, that it is a deduction from
principles of ethics or admitted axioms or what not, which may or may
not coincide with the decisions. But if we take the view of our friend
the bad man we shall find that he does not care two straws for
the axioms or deductions, but that he does want to know what the
Massachusetts or English courts are likely to do in fact. I am much
of th