political society" (“Works ” I. 263). In the sixth lecture of The Province of Jurisprudence Determined, Austin has elaborated and supplemented the views of Bentham on sovereignty.

Bluntschli has enumerated in Lehre vom modernen Stat, I. 563, the following attributes of sovereignty :

I. Independence of the political power of all superior political authority. But this independence is to be understood relatively, not absolutely. International law, which unites all states in an arrangement of common rights, is no more in opposition to the sovereignty of the state than is constitutional law, which limits the exercise of political power within the territory of the state. Whence it is possible that subordinate states may be regarded as remaining sovereign, although they may have become essentially dependent on the collective state, as, for example, in foreign political and military affairs.

2. Supreme political dignity, what the ancient Romans styled Majestas.

3. Plenitude of political power, as opposed to limited authority. Sovereignty is not a sum of separate individual rights, but a collective political right, a central conception of force similar to that of the conception of property in private law.

4. The sovereign power, moreover, is, from its very nature, the supreme power in the state. There can be, therefore, no other political power in the organism of the state superior to it. The French seigneurs of the middle ages ceased to be sovereign when they were obliged again to subordinate themselves to the king, their feudal lord, in all essential respects of independence and dominion. The German electors have been able to assert their sovereignty in their several territories, since the fourteenth century, for in fact they have possessed in their own right the supreme political power in these territories.

5. Since the state is an organic body, the unity of the sovereign power is a necessity of its welfare. The division of the sovereignty leads, in its consequences, to the paralysis or dissolution of the state, and is, therefore, not compatible with the health of the

state.

The general excellence of Holland's Elements of Jurisprudence (Oxford, 1880) entitles the definition of sovereignty there given to our consideation. "Every state," he says, "is divisible into two parts, one of which is sovereign, the other subject." "The

sovereignty of the ruling part has two aspects. It is external,' as independent of all control from without; 'internal,' as paramount over all action within." "External sovereignty, by possession of which a state is qualified for membership of the family of nations, is enjoyed in the fullest degree only by what is technically known as a Simple State,' i. e., by one which is not bound in a permanent manner to any foreign body.' States which are not 'simple' System of States,' and collectively subject to a

(pp. 38, 39)

are members of a 'federal government In his Introduction to the Constitutional Law of the United States, p. 28, Professor J. N. Pomeroy calls attention to the necessity of constantly preserving the distinction between "the nation and the government which that nation has actively created or passively permitted as the agent for the expression of its supreme will." 1 He very properly charges a large part of the confusion of ideas, in this country, concerning the true import of the term sovereignty" and “sovereign” to the long, and in a modified way still continued, discussion of "State rights" and "State sovereignty." It is more difficult to accept his criticism of Austin's famous sixth lecture, when he claims that in it nations and states are confounded with the ruling apparatus or organs of government within them. In reading this lecture it must always be borne in mind that Austin's primary object was to fix distinctly in the minds of his hearers the idea that a law, in the judicial sense, or, as he styles it, a positive law," is a command "set by a sovereign, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme." His leading thought was to define positive law, and, consequently, he concerned himself mainly with making clear the conception of the sovereignty or characteristic marks of the independent political society, and, what was of more importance, with the definition and marks of the sovereign within the independent political body. In other words, he traces distinctly the two objects noted in the above quotation-the "sovereign" and the "independent political society."

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CHAPTER IV.

THE ORGANS OF THE SOVEREIGN.

THE nation must have organs to express its will in commands or laws, and to enforce the execution of its laws. These organs constitute the government, whose function it is to regulate the relations of the nation with other nations, and to regulate the actions and relations of individual citizens with reference to one another.

Having considered the nation as an organic social being, clothed with absolute power vested in that part of the nation which we call the sovereign, and endowed with a will, we turn now to inquire into the nature and general functions of those means through which the will of the nation is expressed and rendered effective.

The nation thus characterized, considered at any given time, appears composed of men, women and children inhabiting a certain territory. Let us take the United States as an example. Our last census report shows that within our territorial limits there were, in 1880, over fifty millions of persons. If we picture to ourselves this great multitude, we shall see at various points hundreds of thousands crowded into cities; then smaller cities and towns and villages, with the interspaces occupied by families living on farms in varying degrees of proximity. If we could embrace all these persons in a single glance, we should see all, or very nearly all, of the adults engaged in different avocations, and it would be particularly noted that each is, in a degree, only a speci

alist; that of all the things which contributed to the satisfaction of his own desires, each produceds, ordinarily, but very little, and even in the country is largely engaged in furnishing what others consume. It would be further noted that these multitudes of individuals are constantly in contact and communication. Now, if we select one of these individuals from the fifty millions, we find that his nobler and better part is the resultant of the past efforts and contributions to the social stock of his predecessors, and also of the efforts of all his contemporary fellow-countrymen. The point is, that in this particular distinctive social division, comprehended within the United States, every individual is fitted in, and is so much a part of the general social organism, that, severed from it, or reduced to what is sometimes erroneously called a state of nature, he could not live. Such a distinct community, constituting a great unit of social existence, must have a government of some kind, otherwise it appears as a being with a will, but without organs through which this will may find expression.

It is true that, for the purposes of abstract consideration, we can separate the nation from its government, because a nation will exist though its government may be changed, or even if it be for a time actually dissolved; still we cannot conceive of a nation continuing any length of time without a government.

In a work which is used as a text-book in our schools, and which, besides, has a wide circulation,* it is laid down as a fundamental proposition, that "governments may be said to be necessary evils, their necessity arising out of the selfishness and stupidity of mankind." There could not be a greater error. Political government grows out of the nature of man, it is true, but it is as much a * Politics for Young Americans, by Charles Nordhoff.

necessity of his being and growth as the vital forces of life themselves. Many centuries ago Aristotle profoundly remarked that "man is by nature a political being." It is an absolutely perverted conception that political government is a device which good men have invented to keep bad men in subjection.* On the contrary, it is a sign of the godlike attributes of humanity; of the supremacy of will and reason over mere instinct and animal desire. The assertion of such a view as that referred to is at this day a revival of the exploded fiction of an original state of nature antecedent to government. Political government is the expression of order in a community. It is the mark of collective reason. It is no more than the instrumentality by or through which the collective body makes and executes the commands which it imposes upon itself. In the earlier stages of growth, social groups have customs instead of written law; but both in their essentials are the same. Custom is a rule of action which has taken shape by degrees, and is finally universally acquiesced in. When thus accepted it becomes the law, and is enforced by the community. The written law is different only in that it was formulated at one time, and is more clearly defined.

The history of all primitive peoples shows that customary law is the first stage of progress from a condition of no law. At first, private wrongs can only be redressed by private vengeance; if a man is murdered, his relatives must pursue and punish the murderer. It is not long, however, before it happens that a man is murdered who

*" It is as a member of a state that man exists, that he is intended to exist, and unless as a member of a state, he is incapable of existing as a man. He can as little create a language as create a state; he is born to both, for both, and without both he cannot exist at all." Kemble, "The Saxons in England," i., 126.