Dictionary of National Biography, 1885-1900/Austin, John (1790-1859)

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1904 Errata appended.

692882Dictionary of National Biography, 1885-1900, Volume 02 — Austin, John (1790-1859)1885John Macdonell

AUSTIN, JOHN (1790–1859), the celebrated jurist, was born 3 March 1790, He was the eldest son of Jonathan Austin, of Creeting Mill, in Suffolk—a remarkable man of sturdy good sense and great mental vigour, who had made a fortune by taking government contracts during the French war. About the age of sixteen, John Austin entered the army, and served for several months with his regiment in Sicily, under the command of Lord William Bentinck. He remained in the army about five years, and then sold his commission and began to study for the bar, to which he was called in 1818 by the Inner Temple. His name appears for the first time in 1819, in the 'Law List,' as an equity draftsman, practising at 2 Old Square, Lincoln's Inn. He is said to have gone the Norfolk circuit; but his name does not occur in the list of counsel practising upon it. About this time Austin became acquainted with James Mill and his son, John Stuart Mill. With the latter in the winter of 1820-21 he went through a course of legal reading. It included a considerable part of Blackstone and Heineccius. In 1820 Austin married a gifted lady. Miss Sarah Taylor, of Norwich. In June 1821 their only child, Lucie, afterwards Lady Duff Gordon,was born. 'They lived,' writes Mrs. Ross, in a sketch of her grandfather's and grandmother's lives, 'in Queen Square, Westminster, almost next door to the house belonging to Mr. James Mill, the historian of British India, and their windows looked into the garden of Jeremy Bentham. These were the most intimate friends of John Austin; and here, it may be said, the utilitarian philosophy of the nineteenth century was born. Bentham's garden was the playground of Lucie Austin and the young Mills; his coachhouse was turned into a gymnasium, and his flower-beds were intersected by threads and ropes to represent the passages of a panopticon prison.' In the drawing-room of the modest London house of the Austins was often found a brilliant company. There might be seen, in his old age, Bentham, the two Mills, Carlyle, the rising lawyers Bickersteth, Erle, and Romilly; wits of the brilliancy of Charles Buller, Sydney Smith, and Luttrell; and among poets, critics, and statesmen, Rogers, Jeffrey, and Lansdowne, Austin did not obtain at the bar the success to which his great talents, acuteness, and powers of lucid and eloquent exposition entitled him in the opinion of his friends. His inability to work rapidly, his habit of taking trouble quite out of proportion to the importance of the matter in hand, were grave obstacles. His health was uncertain; he was subject to fits of feverishness which left him in a state of extreme debility. 'If John Austin had had health, neither Lyndhurst nor I should have been chancellor,' Brougham is said to have observed; and, no doubt, Austin's friends entertained the highest hopes of his success. Finding his profession unremunerative and uncongenial, he gave up in 1825 all thoughts of practice, though not until 1829 did his name disappear from the list of those who took out certificates as equity draftsmen. In 1826 the university of London (now University College) was established mainly through the efforts of Austin's friends; and he was appointed by the council to the chair of jurisprudence. He took great pains to prepare himself for the task. He resolved to go to Germany, and profit by the teaching of the great jurists who flourished there. He visited Heidelberg, where Thibaut then taught the civil law. He then settled for six months at Bonn, where a group of brilliant scholars, including Niebuhr, Brandis, Schlegel, Arndt, Mackeldey, and Heffter, resided. There, with the assistance of a young privatdocent, he read many German works on law. He returned to England in the spring of 1828, and began his lectures at University College. His class was never large; but it included several men who rose to eminence, among others Sir George Cornewall Lewis, Lord Belper, Lord Romilly. Lord Clarendon, Mr. Charles Villiers, Mr. Hare, and Mr. Whiteside, subsequently lord chief justice of Ireland. Congenial occupation seemed to be before him. He was enthusiastic and zealous, and his earnest and eloquent exposition seemed likely to attract many students. 'Demand explanations and ply me with objections — turn me inside out,' was his characteristic advice to them. But again he was unsuccessful. Pupils flocked to the lecture-room of his colleague, Mr. Amos; his was almost deserted. The number of men attending his lectures dwindled down to five (Sargant's Essays); and it soon became plain that there was in England no demand for teaching of a high order in jurisprudence. 'There is some hope,' said the 'Law Magazine' in 1832, 'of his being induced to prepare a course on the Roman law, or the law of nations, for the ensuing session. But it is almost too much to ask him to make an extraordinary exertion for such a meagre audience as he hitherto has had.' Seeing no prospect of obtaining even the small audience with which he would have been content, he resigned his chair in 1832. The year before he published an 'outline' of his course of lectures; and this, corrected and enlarged, was appended to his work, 'The Province of Jurisprudence determined,' which was published in 1832. It was, at first, little read; and its value was not always appreciated by the few who read it. Lord Melbourne's remark about it, as recorded in the Greville memoirs, expressed a too common opinion. 'In answer to the observation that "the Austins were not fools," he said, "Austin? Oh, a damned fool! Did you ever read his book on Jurisprudence?" I said I had read a great part of it, and that it did not appear to be the work of a fool. He said that he had read it all, and that it was the dullest book he ever read, and full of truisms elaborately set forth' (iii. 138). In 1833 Austin was appointed by Lord Brougham a member of the Criminal Law Commission. He did not find the position or the opportunities of giving effect to his views all that he desired. 'He used to come home,' writes his wife, 'from every meeting of the commission disturbed and agitated, and to express his repugnance to receiving the public money for work from which he thought the public would derive little or no benefit. Some blurred and blotted sheets which I 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 the more ordinary sense of duty which subordinates public to private obligation.' He accordingly resigned his position upon the commission. In 1834 he was requested by the society of the Inner Temple to deliver a course of lectures on jurisprudence; but they, too, failed to attract students, and they were soon discontinued. His powerful friends, however, still entertained the highest opinion of his capacity, and a new channel of activity was opened to him. In 1836 he and his friend, Sir George Cornewall Lewis, were appointed commissioners to inquire into the administration and state of government of the island of Malta. The task was eminently congenial to a man of Austin's acquirements. The commissioners were instructed to examine into the laws and usages, the administration of the government, the state of the judicature, the civil and ecclesiastical establishments, the revenue, trade, and resources of the island; and they were also requested to make suggestions as to changes which they thought advisable. No commission ever did its work more carefully, and its reports to the colonial office are remarkable papers, dealing with great ability and thoroughness with some of the most important questions of political economy and jurisprudence. Among those possessed of permanent interest are the despatch urging the establishment in Malta of liberty of printing and publishing; the history of the origin of the corn monopoly in that island; the account of the government charities, of which last paper Lord Glenelg, the colonial secretary, said: 'It is impossible that all the necessary facts should have been brought together with greater brevity and clearness, or that the principles which should direct his Majesty's government should have been stated with greater force and perspicuity.' The reform of the tariff which the commission effected was pronounced by Sir James Stephen 'the most successful legislative experiment he had seen in his time.' What was the precise share which Austin had in the laborious work is a little uncertain; but his peculiar ideas and vigorous language are often clearly discernible — for example, in the account of the history of Maltese law and the proposals with respect to legal education. The elaborate ordinance as to liberty of printing and publishing is interesting as a sample of his style of legal drafting. The commission did not accomplish all that was anticipated, and the government of Malta has been repeatedly subjected to considerable changes since 1837. But Austin did much to improve the institutions of the island. Being ill when he returned from Malta, he went to Carlsbad, and spent there the summers of 1841, 1842, and 1843. The winters he passed in Dresden and Berlin, where he and his wife knew most of the eminent men of the time. While living at Dresden he wrote for the 'Edinburgh Review' a refutation of the arguments in favour of protectionism propounded by Dr. List in 'Das nationale System der politischen Oekonomie.' Though regarding Dr. List's 'desultory' treatise as 'a theory of trade unworthy of grave criticism,' he refuted it with unsparing thoroughness. To see his copy of List's work preserved in the Austin collection in the Inner Temple Library — the book copiously annotated in a bold, clear hand, and scored as a lawyer might score his brief — is to get an idea of the conscientious zeal which Austin carried into all he executed. Austin was at this time under the spell of German scholarship, and he wrote with fervour of his obligation to a land in which he and his wife had so long lived. 'Germany is one of the countries which we respect the most, and to which we are the most attracted, having found in the works of her philosophers, her historians, and her scholars, exhaustless mines of knowledge and instruction, and exhaustless power of pleasure or consolation. Above all we admire the spirit of comprehensive humanity which generally comes through the writings of her classical authors; and it is one of the causes of quarrel with Dr. List that he labours to diffuse a spirit of exclusive and barbarous nationality in the country of Leibnitz, Kant, and Lessing.' To the 'Edinburgh Review' of January 1847 he contributed an elaborate article on centralisation. Taking as his text 'De la Centralisation,' by Timon, and other French works, he endeavoured to dissipate the crowd of fallacies which had gathered round the idea of centralisation. He sought to clear up certain ideas concerning it, and, among them, the confusion between centralisation and over-government, and the common assumption that the former is incompatible with free or popular government, or local government of popular origin. The article concluded with two suggestions still well worthy of consideration — one that the function of private or specific legislation ought to be delegated to subordinate judicial functionaries; the other that there should be a permanent commission, composed of experienced lawyers, whose business it would be to examine and report upon bills submitted to either house of parliament.

In 1844-48 Austin lived in Paris. Shortly after his arrival he was made by the Institute a corresponding member of the moral and political class. Driven from France by the revolution, he settled with his wife at Weybridge in Surrey, where they took a 'long, low rambling old house,' and there the remainder of his days was spent in retirement. It was the happiest period of his life. His interest in jurisprudence, political economy, and politics was undiminished. He folloAved the course of events with unflagging interest. The coup d'etat deeply excited his wrath, and Napoleon III was an especial object of aversion to him. 'I can see him now,' writes a relative, 'with his magnificent hazel eyes flashing as he struck the table with his fist, saying "By God, sir, he is a scoundrel!"' Dissatisfied with all he did, Austin wrote little. He could not even be induced to prepare a second edition of his work on jurisprudence. In 1859 he wrote an article intended as a review in one of the quarterlies of Earl Grey's book on 'Parliamentary Reform.' It was rejected by the editor, and he published it as a pamphlet under the title of 'A Plea for the Constitution.' It was an acute defence of the English constitution as it existed and a warning of the danger of widening the suffrage and putting political power into the hands of people who were not fit to use it. 'It Avill be remarked,' he says in a sentence in the preface, which strikes the keynote of the pamphlet, 'by those who do me the honour of reading the essay, that the consequences I anticipate from any parliamentary reform are all of them mischievous.' The whole essay indicates that Austin's political opinions had been much influenced by his residence abroad; that the 'insane' revolution of 1848 had inspired him with dread of democracy, and that he had abandoned most of the political ideas of Bentham and the radical friends of his youth. He died in December 1859, just as his principles with respect to codification were triumphing in India. His death was little noted; even the legal journals of the time did not mention it; and Mr. J. S. Mill's article in the 'Edinburgh Review' of October 1868 was the first intimation to the majority even of English lawyers that they had lost a great jurist. In 1861 his widow edited a new edition of the 'Province of Jurisprudence,' and added to it a preface, in which she told the chief facts of her husband's life with much pathos. Two years afterwards she published two volumes of his lectures, or such remains of them as she, with remarkable sagacity and zeal, could discover. She was engaged in preparing another edition when she died, and the work was completed by Mr. Robert Campbell. The record of Austin's life is, in many respects, one of failure and disappointment. 'I was born out of time and place,' he himself said. 'I ought to have been a schoolman of the twelfth century or a German professor.' Asked why he did not do more for his brother, the brilliant and successful Charles Austin said: 'John is much cleverer than I, but he is always knocking his head against principles.' He found for his teaching no appreciative public. When first published his 'Province of Jurisprudence' was little noticed. The hope expressed in one of his lectures that laymen would come to take an interest in jurisprudence was crushed by his failure to procure the attention even of lawyers.

Abroad he was, and still is, little known. His name is not found in such a work as 'Holtzendorff's Rechts-Lexicon,' which contains notices of almost every obscure mediæval jurist; and German jurists still confound law proper with morality, as if he had never written. It is doubtful whether he even made in the last forty-two years of his life, by his profession, by his pen, or as a lecturer, a hundred pounds. The end of his life was, to use his wife's words, one of obscure and honourable poverty. There is no reason, however, to lay the blame of this neglect solely upon an inappreciative generation. He was not well equipped for active work. Outwardly austere, he had also a softness of nature which unfitted him for the battle of life. His friend, John Stuart Mill, who has sketched his character with kindly but truthful touches, points out one signal weakness when he says: 'The strength of will of which his manner seemed to give such strong assurance expended itself principally in manner. He spent so much time and exertion on superfluous study and thought that, when his work ought to have been completed, he had generally worked himself into an illness without having finished what he undertook.' His style, too, militated against him. It was clear, and occasionally eloquent; but it abounded in repetitions and amplifications which, however suitable in an instrument settled by an equity draftsman, were repulsive even to intelligent readers. Though a brilliant talker — Macaulay said that he scarcely knew his superior — he wrote in a manner which repelled and disheartened even his admirers. In some respects his labours have been as successful as he could have desired. He helped to revolutionise jurisprudence. He found it, in spite of Hobbes's and of Bentham's labours, an undigested mass of loose theories and vague terminology. The late Mr. Phillimore, speaking of the terminology used by English lawyers, compares it with too much appropriateness to 'the gabble of bushmen in a craal.' Austin introduced exactness of thought and expression. He gave to such terms as 'law,' 'status,' 'sovereignty,' a degree of precision unknown before. He clearly distinguished law proper from objects to which, by metaphor or analogy, it is extended. He showed the relation of custom to law. He described the nature of judicial legislation and its disadvantages without repeating Bentham's exaggerated vituperation. Not the least of Austin's services is that he gave a great impetus to the work of codification. It is inaccurate to speak of his main doctrines as truisms. The best proof of this is that they are still unknown to, or opposed by, the chief jurists of Germany and France. A reaction against his teaching has, it is true, begun. Sir Henry Maine and other students of law from its historical side have criticised his conception of law — general commands of a superior enforced by sanctions — as inapplicable to much that should form part of jurisprudence; and the tendency is to extend that science beyond positive law, to which he would confine it. It is said that he did not take sufficient account of the genesis of law. He confined the domain of positive law to 'law set by a sovereign body of persons, to a member of the independent political society wherein that person or body is sovereign or supreme.' Having regard to Austin's definitions of sovereign and political society, it is often objected that he would exclude from jurisprudence law as known in all barbarous and semi-barbarous and not a few civilised societies. It is also urged that his account of customary law as being either positive morality or law properly so called, only by reason of its being the command of the sovereign, is violently at variance with facts. There is not universal agreement as to the accuracy of his criticisms on the classification of Gains and Justinian, It is often also objected that he who sought to confine jurisprudence to its true domain too frequently diverges into the region of politics, religion, or ethics. But his work has stood remarkably well the test of criticism. The majority of the objections to Austin's method and conclusions come to little more than a contention that jurisprudence may with advantage be studied historically as well as analytically, and that a large class of facts excluded by his definition from that science must always have especial interest for the jurist.

[Austin's Introduction to Lectures on Jurisprudence; Mill's Autobiography; Parliamentary Papers for 1839, vol, xvii.; Times 12 Aug. 1867; Mrs, Ross's Preface to Lady Duff Gordon's Letters from Egypt.]

J. M-l.

Dictionary of National Biography, Errata (1904), p.11
N.B.— f.e. stands for from end and l.l. for last line

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267 i 37 Austin, John (1790-1859): after Timon insert [Cormenin]