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[end of lecture 5]

LECTURE VI.

The connection of the sixth lecture with the first, second, third, fourth, and fifth.

Positive laws, the appropriate matter of jurisprudence, are related in the way of resemblance, or by a close or remote analogy, to the following objects.—1. In the way of resemblance, they are related to the laws of God. 2. In the way of resemblance, they are related to those rules of positive morality which are laws properly so called. 3. By a close or strong analogy, they are related to those rules of positive morality which are merely opinions or sentiments held or felt by men in regard to human conduct. 4. By a remote or slender analogy, they are related to laws merely metaphorical, or laws merely figurative.

To distinguish positive laws from the objects now enumerated, is the purpose of the present attempt to determine the province of jurisprudence.

In pursuance of the purpose to which I have now adverted, I stated, in my first lecture, the essentials of a law or rule (taken with the largest signification which can be given to the term properly).

In my second, third, and fourth lectures, I stated the marks or characters by which the laws of God are distinguished from other laws. And, stating those marks or characters, I explained the nature of the index to his unrevealed laws, or I explained and examined the hypotheses which regard the nature of that index.

In my fifth lecture, I examined or discussed especially the following principal topics (and I touched upon other topics of secondary or subordinate importance).—I examined the distinguishing marks of those positive moral rules which are laws properly so called: I examined the distinguishing marks of those positive moral rules which are styled laws or rules by an analogical extension of the term: and I examined the distinguishing marks of laws merely metaphorical, or laws merely figurative.

I shall finish, in the present lecture, the purpose mentioned above, by explaining the marks or characters which distinguish 220positive laws, or laws strictly so called. And, in order to an explanation of the marks which distinguish positive laws, I shall analyze the expression sovereignty, the correlative expression subjection, and the inseparably connected expression independent political society. With the ends or final causes for which governments ought to exist, or with their different degrees of fitness to attain or approach those ends, I have no concern. I examine the notions of sovereignty and independent political society, in order that I may finish the purpose to which I have adverted above: in order that I may distinguish completely the appropriate province of jurisprudence from the regions which lie upon its confines, and by which it is encircled. It is necessary that I should examine those notions, in order that I may finish that purpose. For the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated thus. Every positive law, or every law simply and strictly so called, is set by a sovereign person, 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. Or (changing the expression) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author. Even though it sprung directly from another fountain or source, it is a positive law, or a law strictly so called, by the institution of that present sovereign in the character of political superior. Or (borrowing the language of Hobbes) ‘the legislator is he, not by whose authority the law was first made, but by whose authority it continues to be a law.’

Having stated the topic or subject appropriate to my present discourse, I proceed to distinguish sovereignty from other superiority or might, and to distinguish society political and independent from society of other descriptions.

The distinguishing marks of sovereignty and independent political society.

The superiority which is styled sovereignty, and the independent political society which sovereignty implies, is distinguished from other superiority, and from other society, by the following marks or characters.—1. The bulk of the given society are in a habit of obedience or submission to a determinate and common superior: let that common superior be a certain individual person, or a certain body or aggregate of individual persons. 2. That certain individual, or that certain body of individuals, is not in a habit of obedience to a determinate human superior. Laws (improperly so called) which opinion 221sets or imposes, may permanently affect the conduct of that certain individual or body. To express or tacit commands of other determinate parties, that certain individual or body may yield occasional submission. But there is no determinate person, or determinate aggregate of persons, to whose commands, express or tacit, that certain individual or body renders habitual obedience.

Or the notions of sovereignty and independent political society may be expressed concisely thus.—If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.

The relation of sovereignty and subjection.

To that determinate superior, the other members of the society are subject: or on that determinate superior, the other members of the society are dependent. The position of its other members towards that determinate superior, is a state of subjection, or a state of dependence. The mutual relation which subsists between that superior and them, may be styled the relation of sovereign and subject, or the relation of sovereignty and subjection.

Strictly speaking, the sovereign portion of the society, and not the society itself, is independent, sovereign, or supreme.

Hence, it follows, that it is only through an ellipsis, or an abridged form of expression, that the society is styled independent. The party truly independent (independent, that is to say, of a determinate human superior), is not the society, but the sovereign portion of the society: that certain member of the society, or that certain body of its members, to whose commands, expressed or intimated, the generality or bulk of its members render habitual obedience. Upon that certain person, or certain body of persons, the other members of the society are dependent: or to that certain person, or certain body of persons, the other members of the society are subject. By ‘an independent political society,’ or ‘an independent and sovereign nation,’ we mean a political society consisting of a sovereign and subjects, as opposed to a political society which is merely subordinate: that is to say, which is merely a limb or member of another political society, and which therefore consists entirely of persons in a state of subjection.

In order that a given society may form a society political and independent, the two distinguishing marks which are mentioned above must unite.

In order that a given society may form a society political and independent, the two distinguishing marks which I have mentioned above must unite. The generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person, or determinate body of persons must not be habitually obedient to a deter222minate person or body. It is the union of that positive, with this negative mark, which renders that certain superior sovereign or supreme, and which renders that given society (including that certain superior) a society political and independent.

To show that the union of those marks renders a given society a society political and independent, I call your attention to the following positions and examples.

1. In order that a given society may form a society political, the generality or bulk of its members must be in a habit of obedience to a determinate and common superior.

In case the generality of its members obey a determinate superior, but the obedience be rare or transient and not habitual or permanent, the relation of sovereignty and subjection is not created thereby between that certain superior and the members of that given society. In other words, that determinate superior and the members of that given society do not become thereby an independent political society. Whether that given society be political and independent or not, it is not an independent political society whereof that certain superior is the sovereign portion.

For example: In 1815 the allied armies occupied France; and so long as the allied armies occupied France, the commands of the allied sovereigns were obeyed by the French government, and, through the French government, by the French people generally. But since the commands and the obedience were comparatively rare and transient, they were not sufficient to constitute the relation of sovereignty and subjection between the allied sovereigns and the members of the invaded nation. In spite of those commands, and in spite of that obedience, the French government was sovereign or independent. Or in spite of those commands, and in spite of that obedience, the French government and its subjects were an independent political society whereof the allied sovereigns were not the sovereign portion.

Now if the French nation, before the obedience to those sovereigns, had been an independent society in a state of nature or anarchy, it would not have been changed by the obedience into a society political. And it would not have been changed by the obedience into a society political, because the obedience was not habitual. For, inasmuch as the obedience was not habitual, it was not changed by the obedience from a society political and independent, into a society political but subordinate.—A given society, therefore, is not a society political, unless the generality of its members be in a habit of obedience to a determinate and common superior.

223 Again: A feeble state holds its independence precariously, or at the will of the powerful states to whose aggressions it is obnoxious. And since it is obnoxious to their aggressions, it and the bulk of its subjects render obedience to commands which they occasionally express or intimate. Such, for instance, is the position of the Saxon government and its subjects in respect of the conspiring sovereigns who form the Holy Alliance. But since the commands and the obedience are comparatively few and rare, they are not sufficient to constitute the relation of sovereignty and subjection between the powerful states and the feeble state with its subjects. In spite of those commands, and in spite of that obedience, the feeble state is sovereign or independent. Or in spite of those commands, and in spite of that obedience, the feeble state and its subjects are an independent political society whereof the powerful states are not the sovereign portion. Although the powerful states are permanently superior, and although the feeble state is permanently inferior, there is neither a habit of command on the part of the former, nor a habit of obedience on the part of the latter. Although the latter is unable to defend and maintain its independence, the latter is independent of the former in fact or practice.

From the example now adduced, as from the example adduced before, we may draw the following inference: that a given society is not a society political, unless the generality of its members be in a habit of obedience to a determinate and common superior.—By the obedience to the powerful states, the feeble state and its subjects are not changed from an independent, into a subordinate political society. And they are not changed by the obedience into a subordinate political society, because the obedience is not habitual. Consequently, if they were a natural society (setting that obedience aside), they would not be changed by that obedience into a society political.

2. In order that a given society may form a society political, habitual obedience must be rendered, by the generality or bulk of its members, to a determinate and common superior. In other words, habitual obedience must be rendered, by the generality or bulk of its members, to one and the same determinate person, or determinate body of persons.

Unless habitual obedience be rendered by the bulk of its members, and be rendered by the bulk of its members to one and the same superior, the given society is either in a state of nature, or is split into two or more independent political societies.

For example: In case a given society be torn by intestine 224war, and in case the conflicting parties be nearly balanced, the given society is in one of the two positions which I have now supposed.—As there is no common superior to which the bulk of its members render habitual obedience, it is not a political society single or undivided.—If the bulk of each of the parties be in a habit of obedience to its head, the given society is broken into two or more societies, which, perhaps, may be styled independent political societies.—If the bulk of each of the parties be not in that habit of obedience, the given society is simply or absolutely in a state of nature or anarchy. It is either resolved or broken into its individual elements, or into numerous societies of an extremely limited size: of a size so extremely limited, that they could hardly be styled societies independent and political. For, as I shall show hereafter, a given independent society would hardly be styled political, in case it fell short of a number which cannot be fixed with precision, but which may be called considerable, or not extremely minute.

3. In order that a given society may form a society political, the generality or bulk of its members must habitually obey a superior determinate as well as common.

On this position I shall not insist here. For I have shown sufficiently in my fifth lecture, that no indeterminate party can command expressly or tacitly, or can receive obedience or submission: that no indeterminate body is capable of corporate conduct or is capable, as a body, of positive or negative deportment.

4. It appears from what has preceded, that, in order that a given society may form a society political, the bulk of its members must be in a habit of obedience to a certain and common superior. But, in order that the given society may form a society political and independent, that certain superior must not be habitually obedient to a determinate human superior.

The given society may form a society political and independent, although that certain superior be habitually affected by laws which opinion sets or imposes. The given society may form a society political and independent, although that certain superior render occasional submission to commands of determinate parties. But the society is not independent, although it may be political, in case that certain superior habitually obey the commands of a certain person or body.

Let us suppose, for example, that a viceroy obeys habitually the author of his delegated powers. And, to render the example complete, let us suppose that the viceroy receives habitual obedience from the generality or bulk of the persons who inhabit 225his province.—Now though he commands habitually within the limits of his province, and receives habitual obedience from the generality or bulk of its inhabitants, the viceroy is not sovereign within the limits of his province, nor are he and its inhabitants an independent political society. The viceroy, and (through the viceroy) the generality or bulk of its inhabitants, are habitually obedient or submissive to the sovereign of a larger society. He and the inhabitants of his province are therefore in a state of subjection to the sovereign of that larger society. He and the inhabitants of his province are a society political but subordinate, or form a political society which is merely a limb of another.

A society independent but natural.

A natural society, a society in a state of nature, or a society independent but natural, is composed of persons who are connected by mutual intercourse, but are not members, sovereign or subject, of any society political. None of the persons who compose it lives in the positive state which is styled a state of subjection: or all the persons who compose it live in the negative state which is styled a state of independence.

Society formed by the intercourse of independent political societies.

Considered as entire communities, and considered in respect of one another, independent political societies live, it is commonly said, in a state of nature. And considered as entire communities, and as connected by mutual intercourse, independent political societies form, it is commonly said, a natural society. These expressions, however, are not perfectly apposite. Since all the members of each of the related societies are members of a society political, none of the related societies is strictly in a state of nature: nor can the larger society formed by their mutual intercourse be styled strictly a natural society. Speaking strictly, the several members of the several related societies are placed in the following positions. The sovereign and subject members of each of the related societies form a society political: but the sovereign portion of each of the related societies lives in the negative condition which is styled a state of independence.

Society formed by the intercourse of independent political societies, is the province of international law, or of the law obtaining between nations. For (adopting a current expression) international law, or the law obtaining between nations, is conversant about the conduct of independent political societies considered as entire communities: circa negotia et causas gentium integrarum. Speaking with greater precision, international law, or the law obtaining between nations, regards the conduct of sovereigns considered as related to one another.

And hence it inevitably follows, that the law obtaining 226between nations is not positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. As I have already intimated, the law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected.

A society political but subordinate.

A society political but subordinate is merely a limb or member of a society political and independent. All the persons who compose it, including the person or body which is its immediate chief, live in a state of subjection to one and the same sovereign.

A society not political, but forming a limb or member of a society political and independent.

Besides societies political and independent, societies independent but natural, society formed by the intercourse of independent political societies, and societies political but subordinate, there are societies which will not quadrate with any of those descriptions. Though, like a society political but subordinate, it forms a limb or member of a society political and independent, a society of the class in question is not a political society. Although it consists of members living in a state of subjection, it consists of subjects considered as private persons.—A society consisting of parents and children, living in a state of subjection, and considered in those characters, may serve as an example.

To distinguish societies political but subordinate from societies not political but consisting of subject members, is to distinguish the rights and duties of subordinate political superiors from the rights and duties of subjects considered as private persons. And before I can draw that distinction, I must analyze many expressions of large and intricate meaning which belong to the detail of jurisprudence. But an explanation of that distinction is not required by my present purpose. To the accomplishment of my present purpose, it is merely incumbent upon me to determine the notion of sovereignty, with the inseparably connected notion of independent political society. For every positive law, or every law simply and strictly so called, is set directly or circuitously by a monarch or sovereign number to a person or persons in a state of subjection to its author.

The definition of the abstract term independent political society (including the definition of the correlative term sovereignty) cannot be rendered in expressions of perfectly precise import, and is therefore a fallible test of specific or particular cases.

The definition of the abstract term independent political society (including the definition of the correlative term sovereignty) cannot be rendered in expressions of perfectly precise import, 227and is therefore a fallible test of specific or particular cases. The least imperfect definition which the abstract term will take, would hardly enable us to fix the class of every possible society. It would hardly enable us to determine of every independent society, whether it were political or natural. It would hardly enable us to determine of every political society, whether it were independent or subordinate.

In order that a given society may form a society political and independent, the positive and negative marks which I have mentioned above must unite. The generality or bulk of its members must be in a habit of obedience to a certain and common superior: whilst that certain person, or certain body of persons, must not be habitually obedient to a certain person or body.

But, in order that the bulk of its members may render obedience to a common superior, how many of its members, or what proportion of its members, must render obedience to one and the same superior? And, assuming that the bulk of its members render obedience to a common superior, how often must they render it, and how long must they render it, in order that that obedience may be habitual?—Now since these questions cannot be answered precisely, the positive mark of sovereignty and independent political society is a fallible test of specific or particular cases. It would not enable us to determine of every independent society, whether it were political or natural.

In the cases of independent society which lie, as it were, at the extremes, we should apply that positive test without a moment’s difficulty, and should fix the class of the society without a moment’s hesitation.—In some of those cases, so large a proportion of the members obey the same superior, and the obedience of that proportion is so frequent and continued, that, without a moment’s difficulty and without a moment’s hesitation, we should pronounce the society political: that, without a moment’s difficulty and without a moment’s hesitation, we should say the generality of its members were in a habit of obedience or submission to a certain and common superior. Such, for example, is the ordinary state of England, and of every independent society somewhat advanced in civilization.—In other of those cases, obedience to the same superior is rendered by so few of the members, or general obedience to the same is so unfrequent and broken, that, without a moment’s difficulty and without a moment’s hesitation, we should pronounce the society natural: that, without a moment’s difficulty and without 228a moment’s hesitation, we should say the generality of its members were not in a habit of obedience to a certain and common superior. Such, for example, is the state of the independent and savage societies which subsist by hunting or fishing in the woods or on the coasts of New Holland.

But in the cases of independent society which lie between the extremes, we should hardly find it possible to fix with absolute certainty the class of the given community. We should hardly find it possible to determine with absolute certainty, whether the generality of its members did or did not obey one and the same superior. Or we should hardly find it possible to determine with absolute certainty, whether the general obedience to one and the same superior was or was not habitual. For example: During the height of the conflict between Charles the First and the Parliament, the English nation was broken into two distinct societies: each of which societies may perhaps be styled political, and may certainly be styled independent. After the conflict had subsided, those distinct societies were in their turn dissolved; and the nation was reunited, under the common government of the Parliament, into one independent and political community. But at what juncture precisely, after the conflict had subsided, was a common government completely re-established? Or at what juncture precisely, after the conflict had subsided, were those distinct societies completely dissolved, and the nation completely reunited into one political community? When had so many of the nation rendered obedience to the Parliament, and when had the general obedience become so frequent and lasting, that the bulk of the nation were habitually obedient to the body which affected sovereignty? And after the conflict had subsided, and until that juncture had arrived, what was the class of the society which was formed by the English people?—These are questions which it were impossible to answer with certainty, although the facts of the case were precisely known.

The positive mark of sovereignty and independent political society is therefore a fallible test. It would not enable us to determine of every independent society, whether it were political or natural.

The negative mark of sovereignty and independent political society is also an uncertain measure. It would not enable us to determine of every political society, whether it were independent or subordinate.—Given a determinate and common superior, and also that the bulk of the society habitually obey that 229superior, is that common superior free from a habit of obedience to a determinate person or body? Is that common superior sovereign and independent, or is that common superior a superior in a state of subjection?

In numerous cases of political society, it were impossible to answer this question with absolute certainty. For example: Although the Holy Alliance dictates to the Saxon government, the commands which it gives, and the submission which it receives, are comparatively few and rare. Consequently, the Saxon government is sovereign or supreme, and the Saxon government and its subjects are an independent political society, notwithstanding its submission to the Holy Alliance. But, in case the commands and submission were somewhat more numerous and frequent, we might find it impossible to determine certainly the class of the Saxon community. We might find it impossible to determine certainly where the sovereignty resided: whether the Saxon government were a government supreme and independent; or were in a habit of obedience, and therefore in a state of subjection, to the allied or conspiring monarchs.²⁰

The definition or general notion of independent political society, is therefore vague or uncertain. Applying it to specific or particular cases, we should often encounter the difficulties which I have laboured to explain.

The difficulties which I have laboured to explain, often embarrass the application of those positive moral rules which are styled international law.

For example: When did the revolted colony, which is now the Mexican nation, ascend from the condition of an insurgent province to that of an independent community? When did the body of colonists, who affected sovereignty in Mexico, change the character of rebel leaders for that of a supreme government? Or (adopting the current language about governments de jure and de facto) when did the body of colonists, who affected sovereignty in Mexico, become sovereign in fact?—And (applying international law to the specific or particular case) when did international law authorize neutral nations to admit the independence of Mexico with the sovereignty of the Mexican government?

Now the questions suggested above are equivalent to this: —When had the inhabitants of Mexico obeyed that body so generally, and when had that general obedience become so 230frequent and lasting, that the bulk of the inhabitants of Mexico were habitually disobedient to Spain, and probably would not resume their discarded habit of submission?

Or the questions suggested above are equivalent to this:— had the inhabitants of Mexico obeyed that body so generally, and when had that general obedience become so frequent and lasting, that the inhabitants of Mexico were independent of Spain in practice, and were likely to remain permanently in that state of practical independence?

At that juncture exactly (let it have arrived when it may), neutral nations were authorized, by the morality which obtains between nations, to admit the independence of Mexico with the sovereignty of the Mexican government. But, by reason of the perplexing difficulties which I have laboured to explain, it was impossible for neutral nations to hit that juncture with precision, and to hold the balance of justice between Spain and her revolted colony with a perfectly even hand.

This difficulty presents itself under numerous forms in international law; indeed almost the only difficult and embarrassing questions in that science arise out of it. And as I shall often have occasion to show, law strictly so called is not free from like difficulties. What can be more indefinite, for instance, than the expressions reasonable time, reasonable notice, reasonable diligence? Than the line of demarcation which distinguishes libel and fair criticism; than that which constitutes a violation of copyright; than that degree of mental aberration which constitutes idiocy or lunacy? In all these cases, the difficulty is of the same nature with that which adheres to the phrases sovereignty and independent society; it arises from the vagueness or indefiniteness of the terms in which the definition or rule is inevitably conceived. And this, I suppose, is what people were driving at when they have agitated the very absurd enquiry whether questions of this kind are questions of law or of fact. The truth is that they are questions neither of law nor of fact. The fact may be perfectly ascertained, and so may the law, as far as it is capable of being ascertained. The rule is known, and so is the given species, as the Roman jurists term it; the difficulty is in bringing the species under the rule; in determining not what the law is, or what the fact is, but whether the given law is applicable to the given fact.

I have tacitly supposed, during the preceding analysis, that every independent society forming a society political possesses the essential property which I will now describe.

In order that an independent society may form a society political, it must not fall short of a number which cannot be fixed with precision, but which may be called considerable, or not extremely minute.

231In order that an independent society may form a society political, it must not fall short of a number which cannot be fixed with precision, but which may be called considerable, or not extremely minute. A given independent society, whose number may be called inconsiderable, is commonly esteemed a natural, and not a political society, although the generality of its members be habitually obedient or submissive to a certain and common superior.

Let us suppose, for example, that a single family of savages lives in absolute estrangement from every other community. And let us suppose that the father, the chief of this insulated family, receives habitual obedience from the mother and children.—Now, since it is not a limb of another and larger community, the society formed by the parents and children is clearly an independent society. And, since the rest of its members habitually obey its chief, this independent society would form a society political, in case the number of its members were not extremely minute. But, since the number of its members is extremely minute, it would (I believe) be esteemed a society in a state of nature: that is to say, a society consisting of persons not in a state of subjection. Without an application of the terms which would somewhat smack of the ridiculous, we could hardly style the society a society political and independent, the imperative father and chief a monarch or sovereign, or the obedient mother and children subjects.—‘La puissance politique’ (says Montesquieu) ‘comprend nécessairement l’union de plusieurs familles.’

Again: let us suppose a society which may be styled independent, or which is not a limb of another and larger community. Let us suppose that the number of its members is not extremely minute. And let us suppose it in the savage condition, or in the extremely barbarous condition which closely approaches the savage.

Inasmuch as the given society lives in the savage condition, or in the extremely barbarous condition which closely approaches the savage, the generality or bulk of its members is not in a habit of obedience to one and the same superior. For the purpose of attacking an external enemy, or for the purpose of repelling an attack made by an external enemy, the generality or bulk of its members, who are capable of bearing arms, submits to one leader, or to one body of leaders. But so soon as that exigency passes, this transient submission ceases; and the society reverts to the state which may be deemed its 232ordinary state. The bulk of each of the families which compose the given society, renders habitual obedience to its own peculiar chief: but those domestic societies are themselves independent societies, or are not united or compacted into one political society by general and habitual obedience to a certain and common superior. And, as the bulk of the given society is not in a habit of obedience to one and the same superior, there is no law (simply or strictly so styled) which can be called the law of that given society or community. The so called laws which are common to the bulk of the community, are purely and properly customary laws: that is to say, laws which are set or imposed by the general opinion of the community, but which are not enforced by legal or political sanctions.—The state which I have briefly delineated, is the ordinary state of the savage and independent societies which live by hunting or fishing in the woods or on the coasts of New Holland. It is also the ordinary state of the savage and independent societies which range in the forests or plains of the North American continent. It was also the ordinary state of many of the German nations whose manners are described by Tacitus.

Now, since the bulk of its members is not in a habit of obedience to one and the same superior, the given independent society would (I believe) be esteemed a society in a state of nature: that is to say, a society consisting of persons not in a state of subjection. But such it could not be esteemed, unless the term political were restricted to independent societies whose numbers are not inconsiderable. Supposing that the term political applied to independent societies whose numbers are extremely minute, each of the independent families which constitute the given society would form of itself a political community: for the bulk of each of those families renders habitual obedience to its own peculiar chief. And, seeing that each of those families would form of itself an independent political community, the given independent society could hardly be styled with strictness a natural society. Speaking strictly, that given society would form a congeries of independent political communities. Or, seeing that a few of its members might not be members also of those independent families, it would form a congeries of independent political communities mingled with a few individuals living in a state of nature.—Unless the term political were restricted to independent societies whose numbers are not inconsiderable, few of the many societies 233which are commonly esteemed natural could be styled natural societies with perfect precision and propriety.

For the reasons which I have now produced, and for reasons which I pass in silence, we must, I believe, arrive at the following conclusion—A given independent society, whose number may be called inconsiderable, is commonly esteemed a natural, and not a political society, although the generality of its members be habitually obedient or submissive to a certain and common superior.

And arriving at that conclusion, we must proceed to this further conclusion.—In order that an independent society may form a society political, it must not fall short of a number which may be called considerable.

The lowest possible number which will satisfy that vague condition cannot be fixed precisely. But, looking at many of the communities which commonly are considered and treated as independent political societies, we must infer that an independent society may form a society political, although the number of its members exceed not a few thousands, or exceed not a few hundreds. The ancient Grison Confederacy (like the ancient Swiss Confederacy with which the Grison was connected) was rather an alliance or union of independent political societies, than one independent community under a common sovereign. Now the number of the largest of the societies which were independent members of the ancient Grison Confederacy hardly exceeded a few thousands. And the number of the smallest of those numerous confederated nations hardly exceeded a few hundreds.

The definition of the terms sovereignty and independent political society, is, therefore, embarrassed by the difficulty following, as well as by the difficulties which I have stated in a foregoing department of my discourse.—In order that an independent society may form a society political, it must not fall short of a number which may be called considerable. And the lowest possible number which will satisfy that vague condition cannot be fixed precisely.

But here I must briefly remark, that, though the essential property which I have now described is an essential or necessary property of independent political society, it is not an essential property of subordinate political society. If the independent society, of which it is a limb or member, be a political and not a natural society, a subordinate society may form a society political, although the number of its members might be 234called extremely minute. For example: A society incorporated by the state for political or public purposes is a society or body politic: and it continues to bear the character of a society or body politic, although its number be reduced, by deaths or other causes, to that of a small family or small domestic community.

Certain of the definitions of the term sovereignty, and of the implied or correlative term independent political society, which have been given by writers of celebrity.

Having tried to determine the notion of sovereignty, with the implied or correlative notion of independent political society, I will produce and briefly examine a few of the definitions of those notions which have been given by writers of celebrity.

Distinguishing political from natural society, Mr. Bentham, in his Fragment on Government, thus defines the former: ‘When a number of persons (whom we may style subjects) are supposed to be in the habit of paying obedience to a person, or an assemblage of persons, of a known and certain description (whom we may call governor or governors), such persons altogether (subjects and governors) are said to be in a state of political society.’ And in order to exclude from his definition such a society as the single family conceived of above, he adds a second essential of political society, namely that the society should be capable of indefinite duration.—Considered as a definition of independent political society, this definition is inadequate or defective. In order that a given society may form a society political and independent, the superior habitually obeyed by the bulk or generality of its members must not be habitually obedient to a certain individual or body: which negative character or essential of independent political society Mr. Bentham has forgotten to notice. And, since the definition in question is an inadequate or defective definition of independent political society, it is also an inadequate or defective definition of political society in general. Before we can define political society, or can distinguish political society from society not political, we must determine the nature of those societies which are at once political and independent. For a political society which is not independent is a member or constituent parcel of a political society which is. Or (changing the expression) the powers or rights of subordinate political superiors are merely emanations of sovereignty. They are merely particles of sovereignty committed by sovereigns to subjects.

According to the definition of independent political society which is stated or supposed by Hobbes in his excellent treatises on government, a society is not a society political and independent, unless it can maintain its independence, against attacks 235from without, by its own intrinsic or unaided strength. But if power to maintain its independence by its own intrinsic strength be a character or essential property of an independent political society, the name will scarcely apply to any existing society, or to any of the past societies which occur in the history of mankind. The weaker of such actual societies as are deemed political and independent, owe their precarious independence to positive international morality, and to the mutual fears or jealousies of stronger communities. The most powerful of such actual societies as are deemed political and independent, could hardly maintain its independence, by its own intrinsic strength, against an extensive conspiracy of other independent nations.—Any political society is (I conceive) independent, if it be not dependent in fact or practice: if the party habitually obeyed by the bulk or generality of its members be not in a habit of obedience to a determinate individual or body.

In his great treatise on international law, Grotius defines sovereignty in the following manner. ‘Summa potestas civilis illa dicitur, cujus actus alterius juri non subsunt, ita ut alterius voluntatis humanæ arbitrio irniti possint reddi. Alterius cum dico, ipsum excludo, qui summa potestate utitur; cui voluntatem mutare licet.’ Which definition is thus rendered by his translator and commentator Barbeyrac. ‘La puissance souveraine est celle dont les actes sont indépendans de tout autre pouvoir supérieur, en sorte qu’ils ne peuvent être annullez par aucune autre volonté humaine. Je dis, par aucune autre volonté humaine; car il faut excepter ici le souverain lui-même, a qui il est libre de changer de volonté.’—Now in order that an individual or body may be sovereign in a given society, two essentials must unite. The generality of the given society must render habitual obedience to that certain individual or body: whilst that individual or body must not be habitually obedient to a determinate human superior. In order to an adequate conception of the nature of international morality, as in order to an adequate conception of the nature of positive law, the former as well as the latter of those two essentials of sovereignty must be noted or taken into account. But, this notwithstanding, the former and positive essential of sovereign or supreme power is not inserted by Grotius in that his formal definition. And the latter and negative essential is stated inaccurately. Sovereign power (according to Grotius) is perfectly or completely independent of other human power; inasmuch that its acts cannot be annulled by any human will other than its own. But if perfect or complete independence be 236of the essence of sovereign power, there is not in fact the human power to which the epithet sovereign, will apply with propriety. Every government, let it be never so powerful, renders occasional obedience to commands of other governments. Every government defers frequently to those opinions and sentiments which are styled international law. And every government defers habitually to the opinions and sentiments of its own subjects. If it were not in a habit of obedience to the commands of a determinate party, a government has all the independence which a government can possibly enjoy.

According to Von Martens of Göttingen (the writer on positive international law already referred to), ‘a sovereign government is a government which ought not to receive commands from any external or foreign government.’—Of the conclusive and obvious objections to this definition of sovereignty the following are only a few. 1. If the definition in question will apply to sovereign governments, it will also apply to subordinate. If a sovereign ought to be free from the commands of foreign governments, so ought every government which is merely the creature of a sovereign, and which holds its powers or rights as a mere trustee for its author. 2. Whether a given government be or be not supreme, is rather a question of fact than a question of international law. A government reduced to subjection is actually a subordinate government, although the state of subjection wherein it is actually held be repugnant to the positive morality which obtains between nations or sovereigns. Though, according to that morality, it ought to be sovereign or independent, it is subordinate or dependent in practice. 3. It cannot be affirmed absolutely of a sovereign or independent government, that it ought not to receive commands from foreign or external governments. The intermeddling of independent governments with other independent governments is often repugnant to the morality which actually obtains between nations. But according to that morality which actually obtains between nations (and to that international morality which general utility commends), no independent government ought to be freed completely from the supervision and control of its fellows. 4. In this definition by Von Martens (as in that which is given by Grotius) there is not the shadow of an allusion to the positive character of sovereignty. The definition points at the relations which are borne by sovereigns to sovereigns: but it omits the relations, not less essential, which are borne by sovereigns to their own subjects.

The ensuing portion of the present lecture is concerned with the following topics.—1. The forms of supreme government. 2. The limits of sovereign power. 3. The origin of government, or the origin of political society.

237 I have now endeavoured to determine the general notion of sovereignty, including the general notion of independent political society. But in order that I may further elucidate the nature or essence of sovereignty, and of the independent political society which sovereignty implies, I will call the attention of my hearers to a few concise remarks upon the following subjects or topics.—1. The various shapes which sovereignty may assume, or the various possible forms of supreme government. 2. The real and imaginary limits which bound the power of sovereigns, and by which the power of sovereigns in supposed to be bounded. 3. The origin of government, with the origin of political society: or the causes of the habitual obedience which is rendered by the bulk of subjects, and from which the power of sovereigns to compel and restrain the refractory is entirely or mainly derived.

The forms of supreme government.

An independent political society is divisible into two portions: namely, the portion of its members which is sovereign or supreme, and the portion of its members which is merely subject. The sovereignty can hardly reside in all the members of a society: for it can hardly happen that some of those members shall not be naturally incompetent to exercise sovereign powers. In most actual societies, the sovereign powers are engrossed by a single member of the whole, or are shared; exclusively by a very few of its members: and even in the actual societies whose governments are esteemed popular, the sovereign number is a slender portion of the entire political community. An independent political society governed by itself, or governed by a sovereign body consisting of the whole community, is not impossible: but the existence of such societies is so extremely improbable, that, with this passing notice, I throw them out of my account.^(m)

Every supreme government is a monarchy (properly so called), or an aristocracy (in the generic meaning of the expression). In other words, it is a government of one, or a government of a number.

Every society political and independent is therefore divisible into two portions: namely, the portion of its members which is sovereign or supreme, and the portion of its members which is 238merely subject. In case that sovereign portion consists of a single member, the supreme government is properly a monarchy, or the sovereign is properly a monarch. In case that sovereign portion consists of a number of members, the supreme government may be styled an aristocracy (in the generic meaning of the expression).—And here I may briefly remark, that a monarchy or government of one, and an aristocracy or government of a number, are essentially and broadly distinguished by the following important difference. In the case of a monarchy or government of one, the sovereign portion of the community is simply or purely sovereign. In the case of an aristocracy or government of a number, that sovereign portion is sovereign as viewed from one aspect, but is also subject as viewed from another. In the case of an aristocracy or government of a number, the sovereign number is an aggregate of individuals, and, commonly, of smaller aggregates composed by those individuals. Now, considered collectively, or considered in its corporate character, that sovereign number is sovereign and independent. But, considered severally, the individuals and smaller aggregates composing that sovereign number are subject to the supreme body of which they are component parts.

In every society, therefore, which may be styled political and independent, one of the individual members engrosses the sovereign powers, or the sovereign powers are shared by a number of the individual members less than the number of the individuals composing the entire community. Changing the phrase, every supreme government is a monarchy (properly so called), or an aristocracy (in the generic meaning of the expression).⁽ⁿ⁾

Of such distinctions between aristocracies as are founded on differences between the proportions which the number of the sovereign body may bear to the number of the community.

239 Governments which may be styled aristocracies (in the generic meaning of the expression) are not unfrequently distinguished into the three following forms: namely, oligarchies, aristocracies (in the specific meaning of the name), and democracies. If the proportion of the sovereign number to the number of the entire community be deemed extremely small, the supreme government is styled an oligarchy. If the proportion be deemed small, but not extremely small, the supreme government is styled an aristocracy (in the specific meaning of the name). If the proportion be deemed large, the supreme government is styled popular, or is styled a democracy. But these three forms of aristocracy (in the generic meaning of the expression) can hardly be distinguished with precision, or even with a distant approach to it. A government which one man shall deem an oligarchy, will appear to another a liberal aristocracy: whilst a government which one man shall deem an aristocracy, will appear to another a narrow oligarchy. A government which one man shall deem a democracy, will appear to another a government of a few: whilst a government which one man shall deem an aristocracy, will appear to another a government of many. The proportion, moreover, of the sovereign number to the number of the entire community, may stand, it is manifest, at any point in a long series of minute degrees.

The distinctions between aristocracies to which I have now adverted, are founded on differences between the proportions which the number of the sovereign body may bear to the number of the community.

Of such distinctions between aristocracies as are founded on differences between the modes wherein the sovereign number may share the sovereign powers.

240 Other distinctions between aristocracies are founded on differences between the modes wherein the sovereign number may share the sovereign powers.

For though the sovereign number may be a homogeneous body, or a body of individual persons whose political characters are similar, it is commonly a mixed or heterogeneous body, or a body of individual persons whose political characters are different. The sovereign number, for example, may consist of an oligarchical or narrower, and a democratical or larger body: of a single individual person styled an emperor or king, and a body oligarchical, or a body democratical: or of a single individual person bearing one of those names, and a body of the former description, with another of the last-mentioned kind. And in any of these cases, or of numberless similar cases, the various constituent members of the heterogeneous and sovereign body may share the sovereign powers in any of infinite modes.

Of such aristocracies as are styled limited monarchies.

The infinite forms of aristocracy which result from those infinite modes, have not been divided systematically into kinds and sorts, or have not been distinguished systematically by generic and specific names. But some of those infinite forms have been distinguished broadly from the rest, and have been marked with the common name of limited monarchies.

Now (as I have intimated above, and shall show more fully hereafter), the difference between monarchies or governments of one, and aristocracies or governments of a number, is of all the differences between governments the most precise or definite, and, in regard to the pregnant distinction between positive law and morality, incomparably the most important. And, since this capital difference between governments of one and a number is involved in some obscurity through the name of limited monarchy, I will offer a few remarks upon the various forms of aristocracy to which that name is applied.

In all or most of the governments which are styled limited monarchies, a single individual shares the sovereign powers with an aggregate or aggregates of individuals: the share of that single individual, be it greater or less, surpassing or exceeding the share of any of the other individuals who are also constituent members of the supreme and heterogeneous body. And by that pre-eminence of share in the sovereign or supreme powers, and (perhaps) by precedence in rank or other honorary marks, that single individual is distinguished, more or less conspicuously, from any of the other individuals with whom he partakes in the sovereignty.

241 But in spite of that pre-eminence, and in spite of that precedence, that foremost individual member of the mixed or heterogeneous aristocracy, is not a monarch in the proper acceptation of the term: nor is the mixed aristocracy of which he is the foremost member, a monarchy properly so called. Unlike a monarch in the proper acceptation of the term, that single individual is not a sovereign, but is one of a sovereign number. Unlike a monarch properly so called, that single individual, considered singly, lives in a state of subjection. Considered singly, he is subject to the sovereign body of which he is merely a limb.

Limited monarchy, therefore, is not monarchy. It is one or another of those infinite forms of aristocracy which result from the infinite modes wherein the sovereign number may share the sovereign powers. And, like any other of those infinite forms, it belongs to one or another of those three forms of aristocracy which I have noticed in a preceding paragraph. If the number of the sovereign body (the so called monarch included) bear to the number of the community an extremely small proportion, the so called monarchy is an oligarchy. If the same proportion be small, but not extremely small, the so called limited monarchy is an aristocratical government (in the specific meaning of the name). If the same proportion be large, the so called limited monarchy is a democratical or popular government, or a government of many.^(o)

As meaning monarchical power limited by positive law, the name limited monarchy involves a contradiction in terms. For a monarch properly so called is sovereign or supreme; and, as I shall show hereafter, sovereign or supreme power is incapable of legal limitation, whether it reside in an individual, or in a number of individuals. It is true that the power of an aristocracy, styled a limited monarchy, is limited by positive morality, 242and also by the law of God. But, the power of every government being limited by those restraints, the name limited monarchy, as pointing to those restraints, is not a whit more applicable to such aristocracies as are marked with it, than to monarchies properly so called.—And as the name is absurd or inappropriate, so is its application capricious. Although it is applied to some of the aristocracies wherein a single individual has the pre-eminence mentioned above, it is also withheld from others to which it is equally applicable. Its application, indeed, is commonly determined by a purely immaterial circumstance: by the nature of the title, or the nature of the name of office, which that foremost member of the mixed aristocracy happens to bear. If he happen to bear a title which commonly is borne by monarchs in the proper acceptation of the term, the supreme government whereof he is a member is usually styled a limited monarchy. Otherwise, the supreme government whereof he is a member is usually marked with a different name. For example: The title of βασιλεύς, rex, or king, is commonly borne by monarchs in the proper acceptation of the term: and since our own king happens to bear that title, our own mixed aristocracy of king, lords, and commons, is usually styled a limited monarchy. If his share in the sovereign powers were exactly what it is now, but he were called protector, president, or stadtholder, the mixed aristocracy of which he is a member would probably be styled a republic. And for such verbal differences between forms of supreme government has the peace of mankind been frequently troubled by ignorant and headlong fanatics.^(p)

243 To the foregoing brief analysis of the forms of supreme government, I append a short examination of the four following topics: for they are far more intimately connected with the subject of that analysis than with any of the other subjects which the scope of my lecture embraces. 1. The exercise of sovereign powers, by a monarch or sovereign body, through political subordinates or delegates representing their sovereign author. 2. The distinction of sovereign and other political powers, into such as are legislative, and such as are executive or administrative. 3. The true natures of the communities or governments which are styled by writers on positive international law half-sovereign states. 4. The nature of a composite state, or a supreme federal government: with the nature of a system of confederated states, or a permanent confederacy of supreme governments.

Of the exercise of sovereign powers, by a monarch or sovereign body, through political subordinates or delegates representing their sovereign author.

In an independent political society of the smallest possible 244magnitude, inhabiting a territory of the smallest possible extent, and living under a monarchy or an extremely narrow oligarchy, all the supreme powers brought into exercise (save those committed to subjects as private persons) might possibly be exercised directly by the monarch or supreme body. But by every actual sovereign (whether the sovereign be one individual, or a number or aggregate of individuals), some of those powers are exercised through political subordinates or delegates representing their sovereign author. This exercise of sovereign powers through political subordinates or delegates is rendered absolutely necessary, in every actual society, by innumerable causes. For example, if the number of the society be large, or if its territory be large, although its number be small, the quantity of work to be done in the way of political government is more than can be done by the sovereign without the assistance of ministers. If the society be governed by a popular body, there is some of the business of government which cannot be done by the sovereign without the intervention of representatives; for there is some of the business of government to which the body is incompetent by reason of its own bulk; and some of the business of government the body is prevented from performing by the private avocations of its members. If the society be governed by a popular body whose members live dispersedly throughout an extensive territory, the sovereign body is constrained by the wide dispersion of its members to exercise through representatives some of its sovereign powers.

In most or many of the societies whose supreme governments are monarchical, or whose supreme governments are oligarchical, or whose supreme governments are aristocratical (in the specific meaning of the name), many of the sovereign powers are exercised by the sovereign directly, or the sovereign performs directly much of the business of government.

Many of the sovereign powers are exercised by the sovereign directly, or the sovereign performs directly much of the business of government, even in some of the societies whose supreme governments are popular. For example: In all or most of the democracies of ancient Greece and Italy, the sovereign people or number, formally assembled, exercised directly many of its sovereign powers. And in some of the Swiss Cantons whose supreme governments are popular, the sovereign portion of the citizens, regularly convened, performs directly much of the business of government.

But in many of the societies whose supreme governments 245are popular, the sovereign or supreme body (or any numerous body forming a component part of it) exercises through representatives, whom it elects and appoints, the whole, or nearly the whole, of its sovereign or supreme powers. In our own country, for example, one component part of the sovereign or supreme body is the numerous body of the commons (in the strict signification of the name): that is to say, such of the commons (in the large acceptation of the term) as share the sovereignty with the king and the peers, and elect the members of the commons’ house. Now the commons exercise through representatives the whole of their sovereign powers; or they exercise through representatives the whole of their sovereign powers, except their sovereign power of electing and appointing representatives to represent them in the British Parliament. So that if the commons were sovereign without the king and the peers, not a single sovereign power, save that which I have now specified, would be exercised by the sovereign directly.

Where a sovereign body (or any smaller body forming a component part of it) exercises through representatives the whole of its sovereign powers, it may delegate those its powers to those its representatives, in either of two modes. 1. It may delegate those its powers to those its representatives, subject to a trust or trusts. 2. It may delegate those its powers to those its representatives, absolutely or unconditionally: insomuch that the representative body, during the period for which it is elected and appointed, occupies completely the place of the electoral; or insomuch that the former, during the period for which it is elected and appointed, is invested completely with the sovereign character of the latter.

For example: The commons delegate their powers to the members of the commons’ house, in the second of the abovementioned modes. During the period for which those members are elected, or during the parliament of which those members are a limb, the sovereignty is possessed by the king and the peers, with the members of the commons’ house, and not by the king and the peers, with the delegating body of the commons: though when that period expires, or when that parliament is any how dissolved, the delegated share in the sovereignty reverts to that delegating body, or the king and the peers, with the delegating body of the commons, are then the body wherein the sovereignty resides. So that if the commons were sovereign without the king and the peers, their present representatives in parliament would be the sovereign in effect, or would possess 246the entire sovereignty free from trust or obligation.—The powers of the commons are delegated so absolutely to the members of the commons’ house, that this representative assembly might concur with the king and the peers in defeating the principal ends for which it is elected and appointed. It might concur, for instance, in making a statute which would lengthen its own duration from seven to twenty years; or which would annihilate completely the actual constitution of the government, by transferring the sovereignty to the king or the peers from the tripartite body wherein it resides at present.

But though the commons delegate their powers in the second of the above-mentioned modes, it is clear that they might delegate them subject to a trust or trusts. The representative body, for instance, might be bound to use those powers consistently with specific ends pointed out by the electoral: or it might be bound, more generally and vaguely, not to annihilate, or alter essentially, the actual constitution of the supreme government. And if the commons were sovereign without the king and the peers, they might impose a similar trust upon any representative body to which they might delegate the entire sovereignty.

Where such a trust is imposed by a sovereign or supreme body (or by a smaller body forming a component part of it), the trust is enforced by legal, or by merely moral sanctions. The representative body is bound by a positive law or laws: or it is merely bound by a fear that it may offend the bulk of the community, in case it shall break the engagement which it has contracted with the electoral

And here I may briefly remark, that this last is the position which really is occupied by the members of the commons’ house. Adopting the language of most of the writers who have treated of the British Constitution, I commonly suppose that the present parliament, or the parliament for the time being, is possessed of the sovereignty: or I commonly suppose that the king and the lords, with the members of the commons’ house, form a tripartite body which is sovereign or supreme. But, speaking accurately, the members of the commons’ house are merely trustees for the body by which they are elected and appointed: and, consequently, the sovereignty always resides in the king and the peers, with the electoral body of the commons. That a trust is imposed by the party delegating, and that the party representing engages to discharge the trust, seems to be imported by the correlative expressions delegation and representation. It were absurd to 247suppose that the delegating empowers the representative party to defeat or abandon any of the purposes for which the latter is appointed: to suppose, for example, that the commons empower their representatives in parliament to relinquish their share in the sovereignty to the king and the lords.—The supposition that the powers of the commons are delegated absolutely to the members of the commons’ house probably arose from the following causes. 1. The trust imposed by the electoral body upon the body representing them in parliament, is tacit rather than express: it arises from the relation between the bodies as delegating and representative parties, rather than from oral or written instructions given by the former to the latter. But since it arises from that relation, the trust is general and vague. The representatives are merely bound, generally and vaguely, to abstain from any such exercise of the delegated sovereign powers as would tend to defeat the purposes for which they are elected and appointed. 2. The trust is simply enforced by moral sanctions. In other words, that portion of constitutional law which regards the duties of the representative towards the electoral body, is positive morality merely. Nor is this extraordinary. For (as I shall show hereafter) all constitutional law, in every country whatever, is, as against the sovereign, in that predicament: and much of it, in every country, is also in that predicament, even as against parties who are subject or subordinate to the sovereign, and who therefore might be held from infringing it by legal or political sanctions.

If a trust of the kind in question were enforced by legal sanctions, the positive law binding the representative body might be made by the representative body and not by the electoral. For example: If the duties of the commons’ house towards the commons who appoint it were enforced by legal sanctions, the positive law binding the commons’ house might be made by the parliament: that is to say, by the commons’ house itself in conjunction with the king and the peers. Or, supposing the sovereignty resided in the commons without the king and the peers, the positive law binding the commons’ house might be made by the house itself as representing the sovereign or state.—But, in either of these cases, the law might be abrogated by its immediate author without the direct consent of the electoral body. Nor could the electoral body escape from that inconvenience, so long as its direct exercise of its sovereign or supreme powers was limited to the election of representatives. In order that the electoral body might escape 248from that inconvenience, the positive law binding its representatives must be made directly by itself or with its direct concurrence. For example: In order that the members of the commons’ house might be bound legally and completely to discharge their duties to the commons, the law must be made directly by the commons themselves in concurrence with the king and the lords: or, supposing the sovereignty resided in the commons without the king and the peers, the law must be made directly by the commons themselves as being exclusively the sovereign. In either of these cases, the law could not be abrogated without the direct consent of the electoral body itself. For the king and the lords with the electoral body of the commons, or the electoral body of the commons as being exclusively the sovereign, would form an extraordinary and ulterior legislature: a legislature superior to that ordinary legislature which would be formed by the parliament or by the commons’ house. A law of the parliament, or a law of the commons’ house, which affected to abrogate a law of the extraordinary and ulterior legislature, would not be obeyed by the courts of justice. The tribunals would enforce the latter in the teeth of the former. They would examine the competence of the ordinary legislature to make the abrogating law, as they now examine the competence of any subordinate corporation to establish a by-law or other statute or ordinance. In the state of New York, the ordinary legislature of the state is controlled by an extraordinary legislature, in the manner which I have now described. The body of citizens appointing the ordinary legislature, forms an extraordinary and ulterior legislature by which the constitution of the state was directly established: and any law of the ordinary legislature, which conflicted with a constitutional law directly proceeding from the extraordinary, would be treated by the courts of justice as a legally invalid act.—That such an extraordinary and ulterior legislature is a good or useful institution, I pretend not to affirm. I merely affirm that the institution is possible, and that in one political society the institution actually obtains.

Of the distinction of sovereign, and other political powers, into such as are legislative, and such as are executive or administrative.

From the exercise of sovereign powers by the sovereign directly, and also by the sovereign through political subordinates or delegates, I pass to the distinction of sovereign, and other political powers, into such as are legislative, and such as are executive or administrative.

It seems to be supposed by many writers, that legislative political powers, and executive political powers, may be distinguished precisely, or, at least, with an approach to precision: 249and that in every society whose government is a government of a number, or, at least, in every society whose government is a limited monarchy, the legislative sovereign powers, and the executive sovereign powers, belong to distinct parties. According, for example, to Sir William Blackstone, the legislative sovereign powers reside in the parliament: that is to say, in the tripartite sovereign body formed by the king, the members of the house of lords, and the members of the house of commons. But, according to the same writer, the executive sovereign powers reside in the king alone.

Now the distinction of political powers into such as are legislative, and such as are executive, scarcely coincides with the distinction of those powers into such as are supreme and such as are subordinate: for it is stated or assumed by the writers who make the former distinction, that sovereign political powers (and, indeed, subordinate also) are divisible into such as are legislative and such as are executive. If the distinction of political powers into legislative and executive have any determinate meaning, its meaning must be this: The former are powers of establishing laws, and of issuing other commands: whilst the latter are powers of administering, or of carrying into operation, laws or other commands already established or issued. But the distinction, as thus understood, is far from approaching to precision. For of all the instruments or means by which laws and other commands are administered or executed, laws and other commands are incomparably the most frequent: insomuch that most of the powers deemed executive or administrative are themselves legislative powers, or involve powers which are legislative. For example: As administered or executed by courts of justice, laws are mainly administered through judgments or decrees: that is to say, through commands issued in particular cases by supreme or subordinate tribunals. And, in order that the law so administered may be administered well, they must be administered agreeably to laws which are merely subservient to that purpose. Thus: All laws or rules determining the practice of courts, or all laws or rules determining judicial procedure, are purely subsidiary to the due execution of others.

That the legislative sovereign powers, and the executive sovereign powers, belong, in any society, to distinct parties, is a supposition too palpably false to endure a moment’s examination. Of the numerous proofs of its falsity which it were easy to produce the following will more than suffice.—1. Of the laws or 250rules made by the British parliament, or by any supreme legislature, many are subsidiary, and are intended to be subsidiary, to the due execution of others. And as making laws or rules subservient to that purpose, it is not less executive than courts of justice as making regulations of procedure.—2. In almost every society, judicial powers, commonly esteemed executive or administrative, are exercised directly by the supreme legislature. For example: The Roman emperors or princes, who were virtually sovereign in the Roman empire or world, not only issued the edictal constitutions which were general rules or laws, but, as forming the highest or ultimate tribunal of appeal, they also issued the particular constitutions which were styled decretes or judgments. In libera republica, or before the virtual dissolution of the free or popular government, the sovereign Roman people, then the supreme legislature, was a high court of justice for the trial of criminal causes. The powers of supreme judicature inhering in the modern parliament, or the body formed by the king and the upper and lower houses, have ever (I believe) been dormant, or have never been brought into exercise: for, as making the particular but ex post facto statutes which are styled acts of attainder, it is not properly a court of justice. But the ancient parliament, formed by the king and the barons, of which the modern is the offspring, was the ultimate court of appeal as well as the sovereign legislature.—3. The present British constitution affords not the slightest countenance to the supposition which I am now examining. It is absurd to say that the parliament has the legislative sovereign powers, but that the executive sovereign powers belong to the king alone. If the parliament (as Blackstone affirms) be sovereign or absolute, every sovereign power must belong to that sovereign body, or to one or more of its members as forming a part or parts of it. The powers of the king considered as detached from the body, or the powers of any of its members considered in the same light, are not sovereign powers, but are simply or purely subordinate: or (changing the phrase) if the king or any of its members, considered as detached from the body, be invested with political powers, that member as so detached is merely a minister of the body, or those political powers are merely emanations of its sovereignty. Besides, political powers which surely may be deemed executive are exercised by each of the houses; whilst political powers which surely may be deemed legislative are exercised by the king. In civil causes, the house of lords is the ultimate court of appeal; and of all the political 251powers which are deemed executive or administrative, judicial powers are the most important and remarkable. The executive or administrative powers which reside in the lower house, are not so weighty and obvious as those which belong to the upper: but still it were easy to show that it exercises powers of the kind. For example: Exercising judicature, through select committees of its members, it adjudges that elections of its members are legally valid or void.²¹ The political powers exercised by the king which surely may be deemed legislative, are of vast extent and importance. As captain general, for example, he makes articles of war: that is to say, laws which regard especially the discipline or government of the soldiery. As administering the law, through subordinate courts of justice, he is the author of the rules of procedure which they have established avowedly, or in the properly legislative mode: and (what is of greater importance) he is the author of that measureless system of judge-made rules of law, or rules of law made in the judicial manner, which has been established covertly by those subordinate tribunals as directly exercising their judicial functions.²²

Of all the larger divisions of political powers, the division of those powers into supreme and subordinate is perhaps the only precise one. The former are the political powers, infinite in number and kind, which, partly brought into exercise, and partly lying dormant, belong to a sovereign or state: that is to say, to the monarch properly so called, if the government be a government of one: and, if the government be a government of a number, to the sovereign body considered collectively, or to its various members considered as component parts of it. The latter are those portions of the supreme powers which are delegated to political subordinates: such political subordinates being subordinate or subject merely, or also immediate partakers in those 252very supreme powers of portions or shares wherein they are possessed as ministers and trustees.

The true natures of the communities or governments which are styled by writers on positive international law half sovereign states.

There were formerly in Europe many of the communities or governments which are styled by writers on positive international law half sovereign states. In consequence of the mighty changes wrought by the French revolution, such communities or governments have wholly or nearly disappeared: and I advert to the true natures of such communities or governments, not because they are intrinsically of any importance or interest, but because the incongruous epithet half or imperfectly sovereign obscures the essence of sovereignty and independent political society. It seems to import that the governments marked with it are sovereign and subject at once.

According to writers on positive international law, a government half or imperfectly sovereign occupies the following position.—In spite of its half or imperfect dependence, it has most of the political and sovereign powers which belong to a government wholly or perfectly supreme. More especially, in all or most of its foreign relations, or in all or most of its relations to foreign or external governments, it acts and is treated as a perfectly sovereign government, and not as a government in a state of subjection to another: insomuch that it makes and breaks alliances, and makes war or peace, without authority from another government, or of its own discretion. But, this notwithstanding, the government, or a member of the government, of another political society, has political powers over the society deemed imperfectly independent. For example: In the Germanico-Roman or Romano-Germanic empire, the particular German governments depending on the empire immediately, or holding of the emperor by tenure in capite were deemed imperfectly sovereign in regard to that general government which consisted of the emperor and themselves as forming the Imperial Diet. For though in their foreign relations they were wholly or nearly independent, they were bound (in reality or show) by laws of that general government: and its tribunals had appellate judicature (substantially or to appearance) over the political and half independent communities wherein they were half supreme. Most, indeed, of the governments deemed imperfectly supreme, are governments which in their origin had been substantially vassal: but which had insensibly escaped from most of their feudal bonds, though they still continued apparently in their primitive state of subjection.

Now I think it will appear on analysis, that every govern253ment deemed imperfectly supreme is really in one or another of the three following predicaments. It is perfectly subject to that other government in relation to which it is deemed imperfectly supreme: Or it is perfectly independent of the other, and therefore is of itself a truly sovereign government: Or in its own community it is jointly sovereign with the other, and is therefore a constituent member of a government supreme and independent. And if every government deemed imperfectly supreme be really in one or another of the three foregoing predicaments, there is no such political mongrel as a government sovereign and subject.—1. The political powers of the government deemed imperfectly supreme, may be exercised entirely and habitually at the pleasure and bidding of the other. On which supposition, its so called half sovereignty is merely nominal and illusive. It is perfectly subject to the other government, though that its perfect subjection may be imperfect in ostent. For example: Although, in its own name, and as of its own discretion, it makes war or peace, its power of making either is merely nominal and illusive, if the power be exercised habitually at the bidding of the other government.—2. The political powers exercised by the other government over the political society deemed imperfectly independent, may be exercised through the permission, or through the authority, of the government deemed imperfectly supreme. On which supposition, the government deemed imperfectly supreme is of itself a truly sovereign government: those powers being legal rights over its own subjects, which it grants expressly or tacitly to another sovereign government. (For, as I shall show hereafter, a sovereign government, with the permission or authority of another, may possess legal rights against the subjects of the latter.) For example: The great Frederic of Prussia, as prince-elector of Brandenburg, was deemed half or imperfectly sovereign in respect of his feudal connection with the German empire. Potentially and in practice, he was thoroughly independent of the Imperial government: and, supposing it exercised political powers over his subjects of the electorate, it virtually exercised them through his authority, and not through his obedience to its commands. Being in a habit of thrashing its armies, he was not in a habit of submission to his seeming feudal superior.—3. The political powers of the government deemed imperfectly supreme, may not be exercised entirely and habitually at the pleasure and bidding of the other: but yet its independence of the other may not be so complete, that the political powers 254exercised by the other over the political society deemed imperfectly independent, are merely exercised through its permission or authority. For example: We may suppose that the elector of Bavaria was independent of the Imperial government, in all or most of his foreign, and in most of his domestic relations: but that, this his independence notwithstanding, he could not have abolished completely, without incurring considerable danger, the appellate judicature of the Imperial tribunals over the Bavarian community. But on the supposition which I have now stated and exemplified, the sovereignty of the society deemed imperfectly independent resides in the government deemed imperfectly supreme together with the other government: and, consequently, the government deemed imperfectly supreme is properly a constituent member of a government supreme and independent. The supreme government of the society deemed imperfectly independent, is one of the infinite forms of supreme government by a number, which result from the infinite modes wherein the sovereign number may share the sovereign powers. There is in the case, nothing extraordinary but this: that all the constituent members of the supreme government in question are not exclusively members of the political society which it governs; since one of them is also sovereign in another political society, or is also a constituent member of another supreme government. In consequence of this anomaly, the interests and pretensions of the constituent members more or less antagonize. But in almost every case of supreme government by a number, the interests and pretensions of the members more or less antagonize, although the supreme government be purely domestic. Whether a supreme government be purely domestic, or one of its limbs be also a limb of another, the supreme government is perpetuated through the mutual concessions of its members, notwithstanding the opposition of their interests and pretensions, and the bloody or bloodless conflicts which the opposition may occasionally beget.—For the reasons produced and suggested in the course of the foregoing analysis, I believe that no government is sovereign and subject at once: that no government can be styled with propriety half or imperfectly supreme.^(q)

255 Before I dismiss the riddle which I have now endeavoured to resolve, I must state or suggest the following difference.—In numberless cases, political powers are exercised over a political community, by the government, or a member of the government, of an external political community. But the government of the former community is scarcely denominated half or imperfectly sovereign, unless the government of the latter, or the member of the government of the latter, possess those political powers as being the government of the latter, or as being a member of its government. For example: The particular German governments which depended on the empire immediately, are denominated half sovereign: for the powers exercised by the Imperial government over their respective communities, were exercised by that government as being that very government, or as being (at least, to appearance) the general government of Germany. But the government of the British Islands is not imperfectly sovereign in regard to the government of Hanover: nor is the government of Hanover an imperfectly sovereign government in regard to the government of the British Islands. For though the king of the British Islands is also king of Hanover, he is not king in either country as being king in the other. The powers which he exercises there, have no dependence whatever on his share in the sovereignty here: nor have the powers which he exercises here, any dependence on his sovereignty (or his share in the sovereignty) there.—The difference which I have now suggested, is analogous to the difference, in the Roman law, between real and personal servitudes: or to the resembling difference, in the law of England, between easements appurtenant and easements in gross. A real right of servitude, or a right of easement appurtenant, belongs to the party invested with the right, as being the owner or occupier of specifically determined land. A personal 256right of servitude, or a right of easement in gross, does not belong to the party as being such owner or occupier, but (according to the current jargon) is annexed to, or inheres in, his person.

Before I proceed to composite states, and systems of confederated states, I will try to explain a difficulty that is closely connected with the subjects which I have examined in the present section.—I have remarked already, and shall endeavour to demonstrate hereafter, that all the individuals or aggregates composing a sovereign number are subject to the supreme body of which they are component parts. Now where a member of a body which is sovereign in one community, is exclusively sovereign in another, how does the sovereignty of that member in the latter of the two communities, consist with the subjection of that member to the body which is sovereign in the former? Supposing, for example, that our own king was monarch and autocrator in Hanover, how would his subjection to the sovereign body of king, lords, and commons, consist with his sovereignty in his German kingdom? A limb or member of a sovereign body would seem to be shorn, by its habitual obedience to the body, of the habitual independence which must needs belong to it as sovereign in a foreign community.—To explain the difficulty, we must assume that the characters of sovereign, and member of the sovereign body, are practically distinct: that, as monarch (for instance) of the foreign community, a member of the sovereign body neither habitually obeys it, nor is habitually obeyed by it. For if, as monarch of the foreign community, he habitually obeyed the body, the body would be sovereign in that community, and he would be merely its minister: and, if, as monarch of the foreign community, he were habitually obeyed by the body, he, and not the body, would be sovereign in the other society. Insomuch that if the characters were practically blended, or, remaining practically distinct, thoroughly conflicted, one of the following results would probably ensue. The member would become subject, or else exclusively sovereign, in both communities: or to preserve his sovereignty in the one, or his part sovereignty in the other, he would renounce his connection with the latter, or with the former society.

Wherever a member of a body sovereign in one community, is also a member of a body sovereign in another, there is the same or a similar difficulty. A state of subjection to the former, and a state of subjection to the latter, may become incompatible: just as a state of subjection may become incompatible with the independence which is one of the essentials of sovereignty.

257 It not unfrequently happens, that two or more independent political societies become subject to a common sovereign: but that after their union, through that common subjection, they still are governed distinctly, and distinguished by their ancient titles. In this case, there is not the difficulty suggested above. The monarch or sovereign body ruling the two societies, is one and the same sovereign: and, through their subjection to that common sovereign, they are one society political and independent.

The nature of a composite state, or a supreme federal government: with the nature of a system of confederated states, or a permanent confederacy of supreme governments.

It frequently happens, that one society political and independent arises from a federal union of several political societies: or, rather, that one government political and sovereign arises from a federal union of several political governments. By some of the writers on positive international law, such an independent political society, or the sovereign government of such a society, is styled a composite state. But the sovereign government of such a society, might be styled more aptly, as well as more popularly, a supreme federal government.

It also frequently happens, that several political societies which are severally independent, or several political governments which are severally sovereign, are compacted by a permanent alliance. By some of the writers on positive international law, the several societies or governments, considered as thus compacted, are styled a system of confederated states. But the several governments, considered as thus compacted, might be styled more aptly, as well as more popularly, a permanent confederacy of supreme governments.

I advert to the nature of a composite state, and to that of a system of confederated states, for the following purposes.—It results from positions which I shall try to establish hereafter, that the power of a sovereign is incapable of legal limitation. It also results from positions which I have tried to establish already, that in every society political and independent, the sovereign is one individual, or one body of individuals: that unless the sovereign be one individual, or one body of individuals, the given independent society is either in a state of nature, or is split into two or more independent political societies. But in a political society styled a composite state, the sovereignty is so shared by various individuals or bodies, that the one sovereign body whereof they are the constituent members, is not conspicuous and easily perceived. In a political society styled a composite state, there is not obviously any party truly sovereign and independent: there is not ob258viously any party armed with political powers incapable of legal limitation. Accordingly, I advert to the nature of a supreme federal government, to show that the society which it rules is ruled by one sovereign, or is ruled by a party truly sovereign and independent. And adverting to the nature of a composite state, I also advert to the nature of a system of confederated states. For the fallacious resemblance of those widely different objects, tends to produce a confusion which I think it expedient to obviate: and, through a comparison or contrast of those widely different objects, I can indicate the nature of the former, more concisely and clearly

1. In the case of a composite state, or a supreme federal government, the several united governments of the several united societies, together with a government common to those several societies, are jointly sovereign in each of those several societies, and also in the larger society arising from the federal union. Or, since the political powers of the common or general government were relinquished and conferred upon it by those several united governments, the nature of a composite state may be described more accurately thus. As compacted by the common government which they have concurred in creating, and to which they have severally delegated portions of their several sovereignties, the several governments of the several united societies are jointly sovereign in each and all.

It will appear on a moment’s reflection, that the common or general government is not sovereign or supreme. It will also appear on a moment’s reflection, that none of the several governments is sovereign or supreme, even in the several society of which it is the immediate chief.

If the common or general government were sovereign or supreme, the several united societies, though constituting one society, would not constitute a composite state: or, though they would be governed by a common and supreme government, their common and supreme government would not be federal. For in almost every case of independent political society, several political societies, governed by several governments, are comprised by the one society which is political and independent: insomuch that a government supreme and federal, and a government supreme but not federal, are merely distinguished by the following difference. Where the supreme government is not federal, each of the several governments, considered in that character, is purely subordinate: or none of the several governments, considered in that character, partakes of the sovereignty. 259But where the supreme government is properly federal, each of the several governments, which were immediate parties to the federal compact, is, in that character, a limb of the sovereign body. Consequently, although they are subject to the sovereign body of which they are constituent members, those several governments, even considered as such, are not purely in a state of subjection.—But since those several governments, even considered as such, are not purely in a state of subjection, the common or general government which they have concurred in creating is not sovereign or supreme.

Nor is any of those several governments sovereign or supreme, even in the several society of which it is the immediate chief. If those several governments were severally sovereign, they would not be members of a composite state: though, if they were severally sovereign, and yet were permanently compacted, they would form (as I shall show immediately) a system of confederated states.

To illustrate the nature of a composite state, I will add the following remark to the foregoing general description.—Neither the immediate tribunals of the common or general government, nor the immediate tribunals of the several united governments, are bound, or empowered, to administer or execute every command that it may issue. The political powers of the common or general government, are merely those portions of their several sovereignties, which the several united governments, as parties to the federal compact, have relinquished and conferred upon it. Consequently, its competence to make laws and to issue other commands, may and ought to be examined by its own immediate tribunals, and also by the immediate tribunals of the several united governments. And if, in making a law or issuing a particular command, it exceed the limited powers which it derives from the federal compact, all those various tribunals are empowered and bound to disobey.—And since each of the united governments, as a party to the federal compact, has relinquished a portion of its sovereignty, neither the immediate tribunals of the common or general government, nor the immediate tribunals of the other united governments, nor even the tribunals which itself immediately appoints, are bound, or empowered, to administer or execute every command that it may issue. Since each of the united governments, as a party to the federal compact, has relinquished a portion of its sovereignty, its competence to make laws and to issue other commands, may and ought to be examined by all those various tribunals. And 260if it enact a law or issue a particular command, as exercising the sovereign powers which it has relinquished by the compact, all those various tribunals are empowered and bound to disobey.

If, then, the general government were of itself sovereign, or if the united governments were severally sovereign, the united societies would not constitute one composite state. The united societies would constitute one independent society, with a government supreme but not federal; or a knot of societies severally independent, with governments severally supreme. Consequently, the several united governments as forming one aggregate body, or they and the general government as forming a similar body, are jointly sovereign in each of the united societies, and also in the larger society arising from the union of all.

Now since the political powers of the common or general government are merely delegated to it by the several united governments, it is not a constituent member of the sovereign body, but is merely its subject minister. Consequently, the sovereignty of each of the united societies, and also of the larger society arising from the union of all, resides in the united governments as forming one aggregate body: that is to say, as signifying their joint pleasure, or the joint pleasure of a majority of their number, agreeably to the modes or forms determined by their federal compact.

By that aggregate body, the powers of the general government were conferred and determined: and by that aggregate body, its powers may be revoked, abridged, or enlarged.—To that aggregate body, the several united governments, though not merely subordinate, are truly in a state of subjection. Otherwise, those united governments would be severally sovereign or supreme, and the united societies would merely constitute a system of confederated states. Besides, since the powers of the general government were determined by that aggregate body, and since that aggregate body is competent to enlarge those powers, it necessarily determined the powers, and is competent to abridge the powers, of its own constituent members. For every political power conferred on the general government, is subtracted from the several sovereignties of the several united governments.—From the sovereignty of that aggregate body, we may deduce, as a necessary consequence, the fact which I have mentioned above: namely, that the competence of the general government, and of any of the united governments, may and ought to be examined by the immediate tribunals of the former, and also by the immediate tribunals of any of the latter. For 261since the general government, and also the united governments, are subject to that aggregate body, the respective courts of justice which they respectively appoint, ultimately derive their powers from that sovereign and ultimate legislature. Consequently, those courts are ministers and trustees of that sovereign and ultimate legislature, as well as of the subject legislatures by which they are immediately appointed. And, consequently, those courts are empowered, and are even bound to disobey, wherever those subject legislatures exceed the limited powers which that sovereign and ultimate legislature has granted or left them.

The supreme government of the United States of America, agrees (I believe) with the foregoing general description of a supreme federal government. I believe that the common government, or the government consisting of the congress and the president of the united states, is merely a subject minister of the united states’ governments. I believe that none of the latter is properly sovereign or supreme, even in the state or political society of which it is the immediate chief. And, lastly, I believe that the sovereignty of each of the states, and also of the larger state arising from the federal union, resides in the states’ governments as forming one aggregate body: meaning by a state’s government, not its ordinary legislature, but the body of its citizens which appoints its ordinary legislature, and which, the union apart, is properly sovereign therein. If the several immediate chiefs of the several united states, were respectively single individuals, or were respectively narrow oligarchies, the sovereignty of each of the states, and also of the larger state arising from the federal union, would reside in those several individuals, or would reside in those several oligarchies, as forming a collective whole.^(r)

2. A composite state, and a system of confederated states, are broadly distinguished by the following essential difference. In the case of a composite state, the several united societies are one independent society, or are severally subject to one sovereign 262body: which, through its minister the general government, and through its members and ministers the several united governments, is habitually and generally obeyed in each of the united societies, and also in the larger society arising from the union of all. In the case of a system of confederated states, the several compacted societies are not one society, and are not subject to a common sovereign: or (changing the phrase) each of the several societies is an independent political society, and each of their several governments is properly sovereign or supreme. Though the aggregate of the several governments was the framer of the federal compact, and may subsequently pass resolutions concerning the entire confederacy, neither the terms of that compact, nor such subsequent resolutions, are enforced in any of the societies by the authority of that aggregate body. To each of the confederated governments, those terms and resolutions are merely articles of agreement which it spontaneously adopts: and they owe their legal effect, in its own political society, to laws and other commands which it makes or fashions upon them, and which, of its own authority, it addresses to its own subjects. In short, a system of confederated states is not essentially different from a number of independent governments connected by an ordinary alliance. And where independent governments are connected by an ordinary alliance, none of the allied governments is subject to the allied governments considered as an aggregate body: though each of the allied governments adopts the terms of the alliance, and commonly enforces those terms, by laws and commands of its own, in its own independent community. Indeed, a system of confederated states, and a number of independent governments connected by an ordinary alliance, cannot be distinguished precisely through general or abstract expressions. So long as we abide in general expressions, we can only affirm generally and vaguely, that the compact of the former is intended to be permanent, whilst the alliance of the latter is commonly intended to be temporary: and that the ends or purposes which are embraced by the compact, are commonly more numerous, and are commonly more complicated, than those which the alliance contemplates.

I believe that the German Confederation, which has succeeded to the ancient Empire, is merely a system of confederated states. I believe that the present Diet is merely an assembly of ambassadors from several confederated but severally independent governments: that the resolutions of the Diet are merely articles of agreement which each of the confederated governments 263spontaneously adopts: and that they owe their legal effect, in each of the compacted communities, to laws and commands which are fashioned upon them by its own immediate chief. I also believe that the Swiss Confederation was and is of the same nature. If, in the case of the German, or of the Swiss Confederation, the body of confederated governments enforces its own resolutions, those confederated governments are one composite state, rather than a system of confederated states. The body of confederated governments is properly sovereign: and to that aggregate and sovereign body, each of its constituent members is properly in a state of subjection.

The limits of sovereign power.

From the various shapes which sovereignty may assume or from the various possible forms of supreme government, I proceed to the limits, real and imaginary, of sovereign or supreme power.

The essential difference of a positive law.

Subject to the slight correctives which I shall state at the close of my discourse, the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be put in the following manner.—Every positive law, or every law simply and strictly so called, is set, directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set, directly or circuitously, by a monarch or sovereign number, to a person or persons in a state of subjection to its author.

It follows from the essential difference of a positive law, and from the nature of sovereignty and independent political society, that the power of a monarch properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation.

Now it follows from the essential difference of a positive law, and from the nature of sovereignty and independent political society, that the power of a monarch properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation. A monarch or sovereign number bound by a legal duty, were subject to a higher or superior sovereign: that is to say, a monarch or sovereign number bound by a legal duty, were sovereign and not sovereign. Supreme power limited by positive law, is a flat contradiction in terms.

Nor would a political society escape from legal despotism, although the power of the sovereign were bounded by legal restraints. The power of the superior sovereign immediately imposing the restraints, or the power of some other sovereign superior to that superior, would still be absolutely free from the fetters of positive law. For unless the imagined restraints were ultimately imposed by a sovereign not in a state of subjection to a higher or superior sovereign, a series of sovereigns ascend264ing to infinity would govern the imagined community. Which is impossible and absurd.

Attempts of sovereigns to oblige themselves themselves, or to oblige the successors to their sovereign powers.

Monarchs and sovereign bodies have attempted to oblige themselves, or to oblige the successors to their sovereign powers. But in spite of the laws which sovereigns have imposed on themselves, or which they have imposed on the successors to their sovereign powers, the position that ‘sovereign power is incapable of legal limitation’ will hold universally or without exception.

The immediate author of a law of the kind, or any of the sovereign successors to that immediate author, may abrogate the law at pleasure. And though the law be not abrogated, the sovereign for the time being is not constrained to observe it by a legal or political sanction. For if the sovereign for the time being were legally bound to observe it, that present sovereign would be in state of subjection to a higher or superior sovereign.

As it regards the successors to the sovereign or supreme powers, a law of the kind amounts, at the most, to a rule of positive morality. As it regards its immediate author, it is merely a law by a metaphor. For if we would speak with propriety, we cannot speak of a law set by a man to himself: though a man may adopt a principle as a guide to his own conduct, and may observe it as he would observe it if he were bound to observe it by a sanction.

The laws which sovereigns affect to impose upon themselves, or the laws which sovereigns affect to impose upon their followers, are merely principles or maxims which they adopt as guides, or which they commend as guides to their successors in sovereign power. A departure by a sovereign or state from a law of the kind in question, is not illegal. If a law which it sets to its subjects conflict with a law of the kind, the former is legally valid, or legally binding.

For example: The sovereign Roman people solemnly voted or resolved, that they would never pass, or even take into consideration, what I will venture to denominate a bill of pains and penalties. For though, at the period in question, the Roman people were barbarians, they keenly felt a truth which is often forgotten by legislators in nations boasting of refinement: namely, that punishment ought to be inflicted agreeably to prospective rules, and not in pursuance of particular and ex post facto commands. This solemn resolution or vote was passed with the forms of legislation, and was inserted in the twelve tables in the following imperative terms: privilegia ne irroganto. But although the resolution or vote was passed with the forms 265of legislation, although it was clothed with the expressions appropriate to a law, and although it was inserted as a law in a code or body of statutes, it scarcely was a law in the proper acceptation of the term, and certainly was not a law simply and strictly so called. By that resolution or vote, the sovereign people adopted, and commended to their successors in the sovereignty, an ethical principle or maxim. The present and future sovereign which the resolution affected to oblige, was not bound or estopped by it. Privileges enacted in spite of it by the sovereign Roman people, were not illegal. The Roman tribunals might not have treated them as legally invalid acts, although they conflicted with the maxim, wearing the guise of a law, privilegia ne irroganto.

Again: By the authors of the union between England and Scotland, an attempt was made to oblige the legislature, which, in consequence of that union, is sovereign in both countries. It is declared in the Articles and Acts, that the preservation of the Church of England, and of the Kirk of Scotland, is a fundamental condition of the union: or, in other words, that the Parliament of Great Britain shall not abolish those churches, or make an essential change in their structures or constitutions. Now, so long as the bulk of either nation shall regard its established church with love and respect, the abolition of the church by the British Parliament would be an immoral act; for it would violate positive morality which obtains with the bulk of the nation, or would shock opinions and sentiments which the bulk of the nation holds. Assuming that the church establishment is commended by the revealed law, the abolition would be irreligious: or, assuming that the continuance of the establishment were commended by general utility, the abolition, as generally pernicious, would also amount to a sin. But no man, talking with a meaning, would call a parliamentary abolition of either or both of the churches an illegal act. For if the parliament for the time being be sovereign in England and Scotland, it cannot be bound legally by that condition of the union which affects to confer immortality upon those ecclesiastical institutions. That condition of the union is not a positive law, but is counsel or advice offered by the authors of the union to future supreme legislatures.

The meanings of the epithet unconstitutional, as it is contradistinguished to the epithet illegal, and as it is applied to conduct of a monarch, or to conduct of a sovereign number in its collegiate and sovereign capacity.

By the two examples which I have now adduced, I am led to consider the meanings of the epithet unconstitutional, as it is contradistinguished in the epithet illegal, and as it is applied to conduct of a monarch, or to conduct of a sovereign number in its collegiate and sovereign capacity. The epithet unconstitutional, as thus opposed and applied, is sometimes used with a meaning 266which is more general and vague, and is sometimes used with a meaning which is more special and definite. I will begin with the former.

1. In every, or almost every, independent political society, there are principles or maxims which the sovereign habitually observes, and which the bulk of the society, or the bulk of its influential members, regard with feelings of approbation. Not unfrequently, such maxims are expressly adopted, as well as habitually observed, by the sovereign or state. More commonly, they are not expressly adopted by the sovereign or state, but are simply imposed upon it by opinions prevalent in the community. Whether they are expressly adopted by the sovereign or state, or are simply imposed upon it by opinions prevalent in the community, it is bound or constrained to observe them by merely moral sanctions. Or (changing the phrase) in case it ventured to deviate from a maxim of the kind in question, it would not and could not incur a legal pain or penalty, but it probably would incur censure, and might chance to meet with resistance, from the generality or bulk of the governed.

Now, if a law or other act of a monarch or sovereign number conflict with a maxim of the kind to which I have adverted above, the law or other act may be called unconstitutional (in that more general meaning which is sometimes given to the epithet). For example: The ex post facto statutes which are styled acts of attainder, may be called unconstitutional, though they cannot be called illegal. For they conflict with a principle of legislation which parliament has habitually observed, and which is regarded with approbation by the bulk of the British community.

In short, when we style an act of a sovereign an unconstitutional act (with that more general import which is sometimes given to the epithet), we mean, I believe, this: That the act is inconsistent with some given principle or maxim: that the given supreme government has expressly adopted the principle, or, at least, has habitually observed it: that the bulk of the given society, or the bulk of its influential members, regard the principle with approbation: and that, since the supreme government has habitually observed the principle, and since the bulk of the society regard it with approbation, the act in question must thwart the expectations of the latter, and must shock their opinions and sentiments. Unless we mean this, we merely mean that we deem the act in question generally pernicious: or that, without a definite reason for the disapprobation which we feel, we regard the act with dislike.

267 2. The epithet unconstitutional as applied to conduct of a sovereign, and as used with the meaning which is more special and definite, imports that the conduct in question conflicts with constitutional law.

And here I would briefly remark, that I mean by the expression constitutional law, the positive morality, or the compound of positive morality and positive law, which fixes the constitution or structure of the given supreme government. I mean the positive morality, or the compound of positive morality and positive law, which determines the character of the person, or the respective characters of the persons, in whom, for the time being, the sovereignty shall reside: and, supposing the government in question an aristocracy or government of a number, which determines moreover the mode wherein the sovereign powers shall be shared by the constituent members of the sovereign number or body.

Now, against a monarch properly so called, or against a. sovereign body in its collegiate and sovereign capacity, constitutional law is positive morality merely, or is enforced merely by moral sanctions: though, as I shall show hereafter, it may amount to positive law, or may be enforced by legal sanctions, against the members of the body considered severally. The sovereign for the time being, or the predecessors of the sovereign, may have expressly adopted, and expressly promised to observe it. But whether constitutional law has thus been expressly adopted, or simply consists of principles current in the political community, it is merely guarded, against the sovereign, by sentiments or feelings of the governed. Consequently, although an act of the sovereign which violates constitutional law, may be styled with propriety unconstitutional, it is not an infringement of law simply and strictly so called, and cannot be styled with propriety illegal.

For example: From the ministry of Cardinal Richelieu down to the great revolution, the king for the time being was virtually sovereign in France. But, in the same country, and during the same period, a traditional maxim cherished by the courts of justice, and rooted in the affections of the bulk of the people, determined the succession to the throne: It determined that the throne, on the demise of an actual occupant, should invariably be taken by the person who then might happen to be heir to it agreeably to the canon of inheritance which was named the Salic law. Now, in case an actual king, by a royal ordinance or law, had attempted to divert the throne to his 268only daughter and child, that royal ordinance or law might have been styled with perfect propriety an unconstitutional act. It would have conflicted with the traditional maxim which fixed the constitution of the monarchy, and which was guarded from infringement by sentiments prevalent in the nation. But illegal it could not have been called: for, inasmuch as the actual king was virtually sovereign, he was inevitably independent of legal obligation. Nay, if the governed had resisted the unconstitutional ordinance, their resistance would have been illegal or a breach of positive law, though consonant to the positive morality which is styled constitutional law, and perhaps to that principle of utility which is the test of positive rules.

Again: An act of the British parliament vesting the sovereignty in the king, or vesting the sovereignty in the king and the upper or lower house, would essentially alter the structure of our present supreme government, and might therefore be styled with propriety an unconstitutional law. In case the imagined statute were also generally pernicious, and in case it offended moreover the generality or bulk of the nation, it might be styled irreligious and immoral as well as unconstitutional. But to call it illegal were absurd: for if the parliament for the time being be sovereign in the united kingdom, it is the author, directly or circuitously, of all our positive law, and exclusively sets us the measure of legal justice and injustice.^(s)

Considered severally, the members of a sovereign body are in a state of subjection to the body, and may therefore be legally bound, even as members of the body, by laws of which it is the author.

269But when I affirm that the power of a sovereign is incapable of legal limitation, I always mean by a ‘sovereign,’ a monarch properly so called, or a sovereign number in its collegiate and sovereign capacity. Considered collectively, or considered in its corporate character, a sovereign number is sovereign and independent: but, considered severally, the individuals and smaller aggregates composing that sovereign number are subject to the supreme body of which they are component parts. Consequently, though the body is inevitably independent of legal or political duty, any of the individuals or aggregates whereof the body is composed may be legally bound by laws of which the body is the author. For example: A member of the house of lords, or a member of the house of commons, may be legally bound by an act of parliament, which, as one of the sovereign legislature, he has concurred with others in making. Nay, he may be legally bound by statutes, or by rules made judicially, which have immediately proceeded from subject or subordinate legislatures: for a law which proceeds immediately from a subject or subordinate legislature is set by the authority of the supreme.

And hence an important difference between monarchies or governments of one, and aristocracies or governments of a number.

Against a monarch properly so called, or against a sovereign number in its collegiate and sovereign capacity, constitutional 270law (as I have remarked already) is enforced, or protected from infringement, by merely moral sanctions. Against a monarch properly so called, or against a sovereign number in its collegiate and sovereign capacity, constitutional law and the law of nations are nearly in the same predicament. Each is positive morality rather than positive law. The former is guarded by sentiments current in the given community, as the latter is guarded by sentiments current amongst nations generally.

But, considered severally, the members of a sovereign body, even as members of the body, may be legally bound by laws of which the body is the author, and which regard the constitution of the given supreme government.—In case it be clothed with a legal sanction, or the means of enforcing it judicially be provided by its author, a law set by the body to any of its own members is properly a positive law: It is properly a positive law, or a law strictly so called, although it be imposed upon the obliged party as a member of the body which sets it. If the means of enforcing it judicially be not provided by its author, it is rather a rule of positive morality than a rule of positive law. But it wants the essentials of a positive law, not through the character of the party to whom it is set or directed, but because it is not invested, with a legal or political sanction, or is a law of imperfect obligation in the sense of the Roman jurists.—In case the law be invested with a legal or political sanction, and regard the constitution or structure of the given supreme government, a breach of the law, by the party to whom it is set, is not only unconstitutional, but is also illegal. The breach of the law is unconstitutional, inasmuch as the violated law regards the constitution of the state. The breach of the law is also illegal, inasmuch as the violated law may be enforced by judicial procedure.

For example: The king, as a limb of the parliament, might be punishable by act of parliament, in the event of his transgressing the limits which the constitution has set to his authority: in the event, for instance, of his pretending to give to a proclamation of his own the legal effect of a statute emanating from the sovereign legislature. Or the members of either house might be punishable by act of parliament, if, as forming a limb of the parliament, they exceeded their constitutional powers: if, for instance, they pretended to give that legal effect to an ordinance or resolution of their own body.

Where, then, the supreme government is a monarchy or government of one, constitutional law, as against that govern271ment, is inevitably nothing more than positive morality. Where the supreme government is an aristocracy or government of a number, constitutional law, as against the members of that government, may either consist of positive morality, or of a compound of positive morality and positive law. Against the sovereign body in its corporate and sovereign character, it is inevitably nothing more than positive morality. But against the members considered severally, be they individuals or be they aggregates of individuals, it may be guarded by legal or political, as well as by moral sanctions.

In fact or practice, the members considered severally, but considered as members of the body, are commonly free, wholly or partially, from legal or political restraints. For example: The king, as a limb of the parliament, is not responsible legally, or cannot commit a legal injury: and, as partaking in conduct of the assembly to which he immediately belongs, a member of the house of lords, or a member of the house of commons, is not amenable to positive law. But though this freedom from legal restraints may be highly useful or expedient, it is not necessary or inevitable. Considered severally, the members of a sovereign body, be they individuals or be they aggregates of individuals, may clearly be legally amenable, even as members of the body, to laws which the body imposes.

And here I may remark, that if a member considered severally, but considered as a member of the body, be wholly or partially free from legal or political obligation, that legally irresponsible aggregate, or that legally irresponsible individual, is restrained or debarred in two ways from an unconstitutional exercise of its legally unlimited power. 1. Like the sovereign body of which it is a member, it is obliged or restrained morally: that is to say, it is controlled by opinions and sentiments current in the given community. 2. If it affected to issue a command which it is not empowered to issue by its constitutional share in the sovereignty, its unconstitutional command would not be legally binding, and disobedience to that command would therefore not be illegal. Nay, although it would not be responsible legally for thus exceeding its powers, those whom it commissioned to execute its unconstitutional command, would probably be amenable to positive law, if they tried to accomplish their mandate. For example: If the king or either of the houses, by way of proclamation or ordinance, affected to establish a law equivalent to an act of parliament, the pretended statute would not be legally binding, and disobedience to the pretended statute 272would therefore not be illegal. And although the king or the house would not be responsible legally for this supposed violation of constitutional law or morality, those whom the king or the house might order to enforce the statute, would be liable civilly or criminally, if they attempted to execute the order.

I have affirmed above, that, taken or considered severally, all the individuals and aggregates composing a sovereign number are subject to the supreme body of which they are component parts. By the matter contained in the last paragraph, I am led to clear the proposition to which I have now adverted, from a seeming difficulty.

Generally speaking, if a member of a sovereign body, taken or considered severally, be not amenable to positive law, it is merely as a member of the body that he is free from legal obligation. Generally speaking, he is bound, in his other characters, by legal restraints. But in some of the mixed aristocracies which are styled limited monarchies, the so called limited monarch is exempted or absolved completely from legal or political duty. For example: According to a maxim of the English law, the king is incapable of committing wrong: that is to say, he is not responsible legally for aught that he may please to do, or for any forbearance or omission.

But though he is absolved completely from legal or political duty, it cannot be thence inferred that the king is sovereign or supreme, or that he is not in a state of subjection to the sovereign or supreme parliament of which he is a constituent member.

Of the numerous proofs of this negative conclusion, which it were easy to produce, the following will amply suffice.—1. Although he is free in fact from the fetters of positive law, he is not incapable of legal obligation. A law of the sovereign parliament, made with his own assent, might render himself and his successors legally responsible. But a monarch properly so called, or a sovereign number in its corporate and sovereign character, cannot be rendered, by any contrivance, amenable to positive law.—2. If he affected to transgress the limits which the constitution has set to his authority, disobedience on the part of the governed to his unconstitutional commands, would not be illegal: whilst the ministers or instruments of his unconstitutional commands, would be legally amenable, for their unconstitutional obedience, to laws of that sovereign body whereof he is merely a limb. But commands issued by sovereigns cannot be disobeyed by their subjects without an 273infringement of positive law: whilst the ministers or instruments of such a sovereign command, cannot be legally responsible to any portion of the community, excepting the author of their mandate.—3. He habitually obeys the laws set by the sovereign body of which he is a constituent member. If he did not, he must speedily yield his office to a less refractory successor, or the British constitution must speedily expire. If he habitually broke the laws set by the sovereign body, the other members of the body would probably devise a remedy: though a prospective and definite remedy, fitted to meet the contingency, has not been provided by positive law, or even by constitutional morality. Consequently, he is bound by a cogent sanction to respect the laws of the body, although that cogent sanction is not predetermined and certain. A law which is set by the opinion of the upper and lower houses (besides a law which is set by the opinion of the community at large) constrains him to observe habitually the proper and positive laws which are set by the entire parliament.—But habitually obeying the laws of a determinate and sovereign body, he is not properly sovereign: for such habitual obedience consists not with that independence which is one of the essentials of sovereignty. And habitually obeying the laws of a certain and supreme body, he is really in a state of subjection to that certain and supreme body, though the other members of the body, together with the rest of the community, are commonly styled his subjects. It is mainly through the forms of procedure which obtain in the courts of justice, that he is commonly considered sovereign. He is clothed by the British constitution, or rather by the parliament of which he is a limb, with subordinate political powers of administering the law, or rather of supervising its administration. Infringements of the law are, therefore, in the style of procedure, offences against the king. In truth, they are not offences against the king, but against that sovereign body of king, lords, and commons, by which our positive law is directly or circuitously established. And to that sovereign body, and not to the king, the several members of the body, together with the rest of the community, are truly subject.

The nature of political or civil liberty together with the supposed difference between free and despotic governments.

But if sovereign or supreme power be incapable of legal limitation, or if every supreme government be legally absolute, wherein (it may be asked) doth political liberty consist, and how do the supreme governments which are commonly deemed free, differ from the supreme governments which are commonly deemed despotic?

274 I answer, that political or civil liberty is the liberty from legal obligation, which is left or granted by a sovereign government to any of its own subjects: and that, since the power of the government is incapable of legal limitation, the government is legally free to abridge their political liberty, at its own pleasure or discretion. I say it is legally free to abridge their political liberty, at its own pleasure or discretion. For a government may be hindered by positive morality from abridging the political liberty which it leaves or grants to its subjects: and it is bound by the law of God, as known through the principle of utility, not to load them with legal duties which general utility condemns.—There are kinds of liberty from legal obligation, which will not quadrate with the foregoing description: for persons in a state of nature are independent of political duty, and independence of political duty is one of the essentials of sovereignty. But political or civil liberty supposes political society, or supposes a πόλις or civitas: and it is the liberty from legal obligation which is left by a state to its subjects, rather than the liberty from legal obligation which is inherent in sovereign power.

Political or civil liberty has been erected into an idol, and extolled with extravagant praises by doting and fanatical worshippers. But political or civil liberty is not more worthy of eulogy than political or legal restraint. Political or civil liberty, like political or legal restraint, may be generally useful, or generally pernicious; and it is not as being liberty, but as conducing to the general good, that political or civil liberty is an object deserving applause.

To the ignorant and bawling fanatics who stun you with their pother about liberty, political or civil liberty seems to be the principal end for which government ought to exist. But the final cause or purpose for which government ought to exist, is the furtherance of the common weal to the greatest possible extent. And it must mainly attain the purpose for which it ought to exist, by two sets of means : first, by conferring such rights on its subjects as general utility commends, and by imposing such relative duties (or duties corresponding to the rights) as are necessary to the enjoyment of the former: secondly, by imposing such absolute duties (or by imposing such duties without corresponding rights) as tend to promote the good of the political community at large, although they promote not specially the interests of determinate parties. Now he who is clothed with a legal 275right, is also clothed with a political liberty: that is to say, he has the liberty from legal obligation, which is necessary to the enjoyment of the right. Consequently, in so far as it attains its appropriate purpose by conferring rights upon its subjects, government attains that purpose through the medium of political liberty. But since it must impose a duty wherever it confers a right, and should also impose duties which have no corresponding rights, it is less through the medium of political liberty, than through that of legal restraint, that government must attain the purpose for which it ought to exist. To say that political liberty ought to be its principal end, or to say that its principal end ought to be legal restraint, is to talk absurdly: for each is merely a mean to that furtherance of the common weal, which is the only ultimate object of good or beneficent sovereignty. But though both propositions are absurd, the latter of the two absurdities is the least remote from the truth.—As I shall show hereafter, political or civil liberties rarely exist apart from corresponding legal restraints. Where persons in a state of subjection are free from legal duties, their liberties (generally speaking) would be nearly useless to themselves, unless they were protected in the enjoyment of their liberties, by legal duties on their fellows: that is to say, unless they had legal rights (importing such duties on their fellows) to those political liberties which are left them by the sovereign government. I am legally free, for example, to move from place to place, in so far as I can move from place to place consistently with my legal obligations: but this my political liberty would be but a sorry liberty unless my fellow-subjects were restrained by a political duty from assaulting and imprisoning my body. Through the ignorance or negligence of a sovereign government, some of the civil liberties which it leaves or grants to its subjects, may not be protected against their fellows by answering legal duties: and some of those civil liberties may perhaps be protected sufficiently by religions and moral obligations. But, speaking generally, a political or civil liberty is coupled with a legal right to it: and, consequently, political liberty is fostered by that very political restraint from which the devotees of the idol liberty are so fearfully and blindly averse.^(t)

276 From the nature of political or civil liberty, I turn to the supposed difference between free and despotic governments.

Every supreme government is free from legal restraints: or (what is the same proposition dressed in a different phrase) every supreme government is legally despotic. The distinction, therefore, of governments into free and despotic, can hardly mean that some of them are freer from restraints than others: or that the subjects of the governments which are denominated free, are protected against their governments by positive law.

Nor can it mean that the governments which are denominated free, leave or grant to their subjects more of political liberty than those which are styled despotic. For the epithet free importing praise, and the epithet despotic importing blame, they who distinguish governments into free and despotic, suppose that the first are better than the second. But inasmuch as political liberty may be generally useful or pernicious, we cannot infer that a government is better than another government, because the sum of the liberties which the former leaves to its subjects, exceeds the sum of the liberties which are left to its subjects by the latter. The excess in the sum of the liberties which the former leaves to its subjects, may be purely mischievous. It may consist of freedom from restraints which are required by the common weal; and which the government would lay upon its subjects, if it fulfilled its duties to the Deity. In consequence, for example, of that mischievous freedom, its subjects may be guarded inadequately against one another, or against attacks from external enemies.

They who distinguish governments into free and despotic, probably mean this:

The rights which a government confers, and the duties which it lays on its subjects, ought to be conferred and imposed for the advancement of the common weal, or with a view to the aggregate happiness of all the members of the society. But in every political society, the government deviates, more or less, from that ethical principle or maxim. In conferring rights and imposing duties, it more or less disregards the common or general weal, and looks, with partial affection, to the peculiar and narrower interests of a portion or portions of 277the community.—Now the governments which deviate less from that ethical principle or maxim, are better than the governments which deviate more. But, according to the opinion of those who make the distinction in question, the governments which deviate less from that ethical principle or maxim, are popular governments (in the largest sense of the expression): meaning by a popular government (in the largest sense of the expression), any aristocracy (limited monarchy or other) which consists of such a number of the given political community as bears a large proportion to the number of the whole society. For it is supposed by those who make the distinction in question, that, where the government is democratical or popular, the interests of the sovereign number, and the interests of the entire community, are nearly identical, or nearly coincide: but that, where the government is properly monarchical, or where the supreme powers reside in a comparatively few, the sovereign one or number has numerous sinister interests, or interests which are not consistent with the good or weal of the general.—According, therefore, to those who make the distinction in question the duties which a government of many lays upon its subjects, are more consonant to the general good than the duties which are laid upon its subjects by a government of one or a few. Consequently, though it leaves or grants not to its subjects, more of political liberty than is left or granted to its subjects by a government of one or a few, it leaves or grants to its subjects more of the political liberty which conduces to the common weal. But, as leaving or granting to its subjects more of that useful liberty, a government of many may be styled free: whilst, as leaving or granting to its subjects less of that useful liberty, a government of one or a few may be styled not free, or may be styled despotic or absolute. Consequently, a free government, or a good government, is a democratical or popular government (in the largest sense of the expression): whilst a despotic government, or a bad government, is either a monarchy properly so called, or any such narrow aristocracy (limited monarchy or other) as is deemed an oligarchy.

They who distinguish governments into free and despotic, are therefore lovers of democracy. By the epithet free, as applied to governments of many, they mean that governments of many are comparatively good: and by the epithet despotic, as applied to monarchies or oligarchies, they mean that monarchies or oligarchies are comparatively bad. The epithets free and 278despotic are rarely, I think, employed by the lovers of monarchy or oligarchy. If the lovers of monarchy or oligarchy did employ those epithets, they would apply the epithet free to governments of one or a few, and the epithet despotic to governments of many. For they think the former comparatively good, and the latter comparatively bad; or that monarchical or oligarchical governments are better adapted than popular, to attain the ultimate purpose for which governments ought to exist. They deny that the latter are less misled than the former, by interests which are not consistent with the common or general weal: or, granting that excellence to governments of many, they think it greatly outweighed by numerous other excellences which they ascribe to governments of one or to governments of a few.

But with the respective merits or demerits of various forms of government, I have no direct concern. I have examined the current distinction between free and despotic governments, because it is expressed in terms which are extremely inappropriate and absurd, and which tend to obscure the independence of political or legal obligation, that is common to sovereign governments of all forms or kinds.

Why it has been doubted, that the power of a sovereign is incapable of legal limitation.

That the power of a sovereign is incapable of legal limitation, has been doubted, and even denied. But the difficulty, like thousands of others, probably arose from a verbal ambiguity.—The foremost individual member of a so called limited monarchy, is styled improperly monarch or sovereign. Now the power of a monarch or sovereign, thus improperly so styled, is not only capable of legal limitations, but is sometimes actually limited by positive law. But monarchs or sovereigns, thus improperly so styled, were confounded with monarchs, and other sovereigns, in the proper acceptation of the terms. And since the power of the former is capable of legal limitations, it was thought that the power of the latter might be bounded by similar restraints.

The proposition is asserted expressly by renowned political writers of opposite parties or sects.

Whatever may be its origin, the error is remarkable. For the legal independence of monarchs in the proper acceptation of the term, and of sovereign bodies in their corporate and sovereign capacities, not only follows inevitably from the nature of sovereign power, but is also asserted expressly by renowned political writers of opposite parties or sects: by celebrated advocates of the governments which are decked with the epithet free, as by celebrated advocates of the governments which are branded with the epithet despotic.

‘If it be objected (says Sidney) that I am a defender of arbitrary powers, I confess I cannot comprehend how any society 279can be established or subsist without them. The difference between good and ill governments is not, that those of one sort have an arbitrary power which the others have not; for they all have it; but that in those which are well constituted, this power is so placed as it may be beneficial to the people.’

‘It appeareth plainly (says Hobbes) to my understanding, that the soveraign power whether placed in one man, as in monarchy, or in one assembly of men, as in popular and aristocraticall commonwealths, is as great as men can be imagined to make it. And though of so unlimited a power men may fancy many evill consequences, yet the consequence of the want of it, which is warre of every man against his neighbour, is much worse. The condition of man in this life shall never be without inconveniences: but there happeneth in no commonwealth any great inconvenience, but what proceeds from the subjects disobedience. And whosoever, thinking soveraign power too great, will seek to make it lesse, must subject himselfe to a power which can limit it: that is to say, to a greater.’—‘One of the opinions (says the same writer) which are repugnant to the nature of a commonwealth, is this: that he who hath the soveraign power is subject to the civill lawes. It is true that all soveraigns are subject to the lawes of nature; because such lawes be Divine, and cannot by any man, or by any commonwealth, be abrogated. But to the civill lawes, or to the lawes which the soveraign maketh, the soveraign is not subject: for if he were subject to the civill lawes, he were subject to himselfe; which were not subjection, but freedom. The opinion now in question, because it setteth the civill lawes above the soveraign, setteth also a judge above him, and a power to punish him: which is to make a new soveraign; and, again, for the same reason, a third to punish the second; and so continually without end, to the confusion and dissolution of the commonwealth.’—‘The difference (says the same writer) between the kinds or forms of commonwealth, consisteth not in a difference between their powers, but in a difference between their aptitudes to produce the peace and security of the people: which is their end.’^(u)

A sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, has no legal rights (in the proper acceptation of the term) against its own subjects.

280 Before I discuss the origin of political government and society, I will briefly examine a topic allied to the liberty of sovereigns from political or legal restraints.

281 A sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, has no legal rights (in the proper acceptation of the term) against its own subjects.

282 Every legal right is the creature of a positive law: and it answers to a relative duty imposed by that positive law, and incumbent on a person or persons other than the person or 283persons in whom the right resides. To every legal right, there are therefore three parties: The sovereign government of one or a number which sets the positive law, and which through the positive law confers the legal right, and imposes the relative duty: the person or persons on whom the right is conferred: the person or persons on whom the duty is imposed, or to whom the positive law is set or directed.—As I shall show hereafter, the person or persons invested with the right, are not necessarily members of the independent political society wherein the author of the law is sovereign or supreme. The person or persons invested with the right, may be a member or members, sovereign or subject, of another society political and independent. But (taking the proposition with the slight correctives which I shall state hereafter) the person or persons on whom the duty is imposed, or to whom the law is set or directed, are necessarily members of the independent political society wherein the author of the law is sovereign or supreme. For unless the party burthened with the duty were subject to the author of the law, the party would not be obnoxious to the legal or political sanction by which the duty and the right are respectively enforced and protected. A government can hardly impose legal duties or obligations upon members of foreign societies: although it can invest them with legal rights, by imposing relative duties upon members of its own community. A party bearing a legal right, is not necessarily burthened with a legal trust. Consequently, a party may bear and exercise a legal right, though the party cannot be touched by the might or power of its author. But 284unless the opposite party, or the party burthened with the relative duty, could be touched by the might of its author, the right and the relative duty, with the law which confers and imposes them, were merely nominal and illusory. And (taking the proposition with the slight correctives which I shall state hereafter) a person obnoxious to the sanction enforcing a positive law, is necessarily subject to the author of the law, or is necessarily a member of the society, wherein the author is sovereign.

It follows from the essentials of a legal right, that a sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, has no legal rights (in the proper acceptation of the term) against its own subjects.

To every legal right, there are three several parties: namely, a party bearing the right; a party burthened with the relative duty; and a sovereign government setting the law through which the right and the duty are respectively conferred and imposed. A sovereign government cannot acquire rights through laws set by itself to its own subjects. A man is no more able to confer a right on himself, than he is able to impose on himself a law or duty. Every party bearing a right (divine, legal, or moral) has necessarily acquired the right through the might or power of another: that is to say, through a law and a duty (proper or improper) laid by that other party on a further and distinct party. Consequently, if a sovereign government had legal rights against its own subjects, those rights were the creatures of positive laws set to its own subjects by a third person or body. And, as every positive law is laid by a sovereign government on a person or persons in a state of subjection to itself, that third person or body were sovereign in that community whose own sovereign government bore the legal rights: that is to say, the community were subject to its own sovereign, and were also subject to a sovereign conferring rights upon its own. Which is impossible and absurd.^(v)

285 But so far as they are bound by the law of God to obey their temporal sovereign, a sovereign government has rights divine against its own subjects: rights which are conferred upon itself, 286through duties which are laid upon its subjects, by laws of a common superior. And so far as the members of its own community are severally constrained to obey it by the opinion of the community at large, it has also moral rights (or rights arising from positive morality) against its own subjects severally considered: rights which are conferred upon itself by the opinion of the community at large, and which answer to relative duties laid upon its several subjects by the general or prevalent opinion of the same indeterminate body.

Consequently, when we say that a sovereign government, as against its own subjects, has or has not a right to do this or that, we necessarily mean by a right (supposing we speak exactly), a right divine or moral: we necessarily mean (supposing we speak exactly), that it has or has not a right derived from a law of God, or derived from a law improperly so called which the general opinion of the community sets to its members severally.

But when we say that a government, as against its own subjects, has or has not a right to do this or that, we not uncommonly mean that we deem the act in question generally useful or pernicious. This application of the term right, resembles an application of the term justice to which I have adverted above.—An act which conforms to the Divine law, is styled, emphatically, just: an act which does not, is styled, emphatically, unjust. An act which is generally useful, conforms to the Divine law as known through the principle of utility: an act which is generally pernicious, does not conform to the Divine law as known through the same exponent. Consequently, ‘an act which is just or unjust,’ and ‘an act which is generally useful or generally pernicious,’ are nearly equivalent expressions.—An act which a 287sovereign government has a Divine right to do, it, emphatically, has a right to do: if it has not a Divine right, it, emphatically, has not a right. An act which were generally useful, the Divine law, as known through the principle of utility, has conferred on the sovereign government a right to do: an act which were generally pernicious, the Divine law, as known through the same exponent, has not conferred on the sovereign government a right to do. Consequently, an act which the government has a right to do, is an act which were generally useful: as an act which the government has not a right to do, is an act which were generally pernicious.

To ignorance or neglect of the palpable truths which I have expounded in the present section, we may impute a pernicious jargon that was current in our own country on the eve of her horrible war with her North American children. By the great and small rabble in and out of parliament, it was said that the government sovereign in Britain was also sovereign in the colonies; and that, since it was sovereign in the colonies, it had a right to tax their inhabitants. It was objected by Mr. Burke to the project of taxing their inhabitants, that the project was inexpedient: pregnant with probable evil to the inhabitants of the colonies, and pregnant with probable evil to the inhabitants of the mother country. But to that most rational objection, the sticklers for the scheme of taxation returned this asinine answer. They said that the British government had a right to tax the colonists; and that it ought not to be withheld by paltry considerations of expediency, from enforcing its sovereign right against its refractory subjects.—Now, assuming that the government sovereign in Britain was properly sovereign in the colonies, it had no legal right to tax its colonial subjects; although it was not restrained by positive law, from dealing with its colonial subjects at its own pleasure or discretion. If, then, the sticklers for the scheme of taxation had any determinate meaning, they meant that the British government was empowered by the law of God to tax its American subjects. But it had not a Divine right to tax its American subjects, unless the project of taxing them accorded with general utility: for every Divine right springs from the Divine law; and to the Divine law, general utility is the index. Consequently, when the sticklers for the scheme of taxation opposed the right to expediency, they opposed the right to the only test by which it was possible to determine the reality of the right itself.

From an appearance of a sovereign government before a tribunal of its own, we cannot infer that the government lies under legal duties, or has legal rights against its own subjects.

A sovereign government of one, or a sovereign government 288of a number in its collegiate and sovereign capacity, may appear in the character of defendant, or may appear in the character of demandant, before a tribunal of its own appointment, or deriving jurisdiction from itself. But from such an appearance of a sovereign government, we cannot infer that the government lies under legal duties, or has legal rights against its own subjects.

Supposing that the claim of the plaintiff against the sovereign defendant were truly founded on a positive law, it were founded on a positive law set to the sovereign defendant by a third person or body: or (changing the phrase) the sovereign defendant would be in a state of subjection to another and superior sovereign. Which is impossible and absurd.—And supposing that the claim of the sovereign demandant were truly founded on a positive law, it were founded on a positive law set by a third party to a member, or members of the society wherein the demandant is supreme: or (changing the phrase) the society subject to the sovereign demandant, were subject, at the same time, to another supreme government. Which is also impossible and absurd.

Besides, where the sovereign government appears in the character of defendant, it appears to a claim founded on a so called law which it has set to itself. It therefore may defeat the claim by abolishing the law entirely, or by abolishing the law in the particular or specific case.—Where it appears in the character of demandant, it apparently founds its claim on a positive law of its own, and it pursues its claim judicially. But although it reaches its purpose through a general and prospective rule, and through the medium of judicial procedure, it is legally free to accomplish its end by an arbitrary or irregular exercise of its legally unlimited power.

The rights which are pursued against it before tribunals of its own, and also the rights which it pursues before tribunals of its own, are merely analogous to legal rights (in the proper acceptation of the term): or (borrowing the brief and commodious expressions by which the Roman jurists commonly denote an analogy) they are legal rights quasi, or legal rights uti.—The rights which are pursued against it before tribunals of its own, it may extinguish by its own authority. But, this notwithstanding, it permits the demandants to prosecute their claims: And it yields to those claims, when they are established judicially, as if they were truly founded on positive laws set to itself by a third and distinct party.—The rights which it pursues before tribunals of its own, are powers which it is free to exercise according to its own pleasure. But, this notwithstanding, 289it prosecutes its claims through the medium of judicial procedure, as if they were truly founded on positive laws set to the parties defendant by a third person or body.²⁵

The foregoing explanation of the seeming legal rights which are pursued against sovereign governments before tribunals of their own, tallies with the style of judicial procedure, which, in all or most nations, is observed in cases of the kind. The object of the plaintiff’s claim is not demanded as of right, but is begged of the sovereign defendant as a grace or favour.

In our own country, claims pursued judicially against our own king are presented to the courts of justice in the same or a similar style. The plaintiff petitions the royal defendant to grant him his so called right: or he shows to the royal defendant his so called right and injury, and prays the royal defendant to yield him fitting redress. But where a claim is pursued judicially against our own king, this mendicant style of presenting the claim is merely accidental. It arises from the mere accident to which I have adverted already: namely, that our own king, though not properly sovereign, is completely free in fact from legal or political duties. Since he is free in fact from every legal obligation, no one has a legal right (in the proper acceptation of the term) against the king: for if any had a legal right against the king, the king were necessarily subject to an answering legal duty. But seeing that our own king is merely a limb of the parliament, and is virtually in a state of subjection to that sovereign body or aggregate, he is capable of legal duties: that is to say, duties imposed upon him by that sovereign body or aggregate in its collegiate and sovereign character. For the same reason, he is capable of legal rights: that is to say, rights conferred upon him by that sovereign body or aggregate, and answering to relative duties imposed by the same body on others of its own subjects. Accordingly, the king has legal rights against others of his fellow subjects: though by reason of his actual exemption from every legal obligation, none of his fellow subjects have legal rights against him.

Though a sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, cannot have legal rights against its own subjects, it may have a legal right against a subject or subjects of another sovereign government.

Though a sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, cannot have legal rights against its own subjects, it may have a legal right against a subject or subjects of another sovereign government. For seeing that a legal or political right is not of necessity saddled with a legal or political trust, the positive law 290conferring the right may not be set to the government on which the right is conferred. The law conferring the right (as well as the relative duty answering to the right) may be laid or imposed exclusively on the subject or subjects of the government by which the right is imparted. The possession of a legal or political right against a subject or subjects of another sovereign government, consists, therefore, with that independence which is one of the essentials of sovereignty. And since the legal right is acquired from another government, and through a law which it sets to a subject or subjects of its own, the existence of the legal right implies no absurdity. It is neither acquired through a positive law set by the government which acquires it, nor through a positive law set by another government to a member or members of the society wherein the acquirer is supreme.²⁶

The origin or causes of political government and society.

I now have defined or determined the general notion of sovereignty, including the general notion of independent political society: And, in order that I might further elucidate the nature or essence of sovereignty, and of the independent political society which sovereignty implies, I have considered the possible forms of supreme political government with the limits, real or imaginary, of supreme political power. To complete my intended disquisition on the nature or essence of sovereignty, and of the independent political society that sovereignty implies, I proceed to the origin or causes of the habitual or permanent obedience, which, in every society political and independent, is rendered by the bulk of the community to the monarch or sovereign number. In other words, I proceed to the origin or causes of political government and society.

The proper purpose or end of a sovereign political government, or the purpose or end for which it ought to exist, is the greatest possible advancement of human happiness: Though, if it would duly accomplish its proper purpose or end, or advance as far as is possible the weal or good of mankind, it commonly must labour directly and particularly to advance as far as is possible the weal of its own community. The good of the 291universal society formed by mankind, is the aggregate good of the particular societies into which mankind is divided: just as the happiness of any of those societies is the aggregate happiness of its single or individual members. Though, then the weal of mankind is the proper object of a government, or though the test of its conduct is the principle of general utility, it commonly ought to consult directly and particularly the weal of the particular community which the Deity has committed to its rule. If it truly adjust its conduct to the principle of general utility, it commonly will aim immediately at the particular and more precise, rather than the general and less determinate end.

It were easy to show, that the general and particular ends never or rarely conflict. Universally, or nearly universally, the ends are perfectly consistent, or rather are inseparably connected. An enlightened regard for the common happiness of nations, implies an enlightened patriotism; whilst the stupid and atrocious patriotism which looks exclusively to country, and would further the interests of country at the cost of all other communities, grossly misapprehends and frequently crosses the interests that are the object of its narrow concern.—But the topic which I now have suggested, belongs to the province of ethics, rather than the province of jurisprudence. It belongs especially to the peculiar department of ethics, which is concerned with international morality: which affects to determine the morality that ought to obtain between nations, or to determine the international morality commended by general utility.^(w)

292 From the proper purpose or end of a sovereign political government, or from the purpose or end for which it ought to exist, we may readily infer the causes of that habitual obedience 293which would be paid to the sovereign by the bulk of an enlightened society. Supposing that a given society were adequately instructed or enlightened, the habitual obedience to its government which was rendered by the bulk of the community, would exclusively arise from reasons bottomed in the principle of utility. If they thought the government perfect, or that the government accomplished perfectly its proper purpose or end, this their conviction or opinion would be their motive to obey. If they deemed the government faulty, a fear that the evil of resistance might surpass the evil of obedience, would be their inducement to submit: for they would not persist in their obedience to a government which they deemed imperfect, if they thought that a better government might probably be got by 294resistance, and that the probable good of the change outweighed its probable mischief.

Since every actual society is inadequately instructed or enlightened, the habitual obedience to its government which is rendered by the bulk of the community, is partly the consequence of custom: They partly pay that obedience to that present or established government, because they, and perhaps their ancestors, have been in a habit of obeying it. Or the habitual obedience to the government which is rendered by the bulk of the community, is partly the consequence of prejudices: meaning by ‘prejudices,’ opinions and sentiments which have no foundation whatever in the principle of general utility. If, for example, the government is monarchical, they partly pay that obedience to that present or established government because they are fond of monarchy inasmuch as it is monarchy, or because they are fond of the race from which the monarch has descended. Or if, for example, the government is popular, they partly pay that obedience to that present or established government, because they are fond of democracy inasmuch as it is democracy, or because the word ‘republic’ captivates their fancies and affections.

But though that habitual obedience is partly the consequence of custom, or though that habitual obedience is partly the consequence of prejudices, it partly arises from a reason bottomed in the principle of utility.²⁹ It partly arises from a perception, by the generality or bulk of the community, of the expediency of political government: or (changing the phrase) it partly arises from a preference, by the generality or bulk of the community, of any government to anarchy. If, for specific reasons, they are attached to the established government, their general perception of the utility of government concurs with their special attachment. If they dislike the established government, their general perception of the utility of government controls and masters 295their dislike. They detest the established government: but if they would change it for another by resorting to resistance, they must travel to their object through an intervening anarchy which they detest more.

The habitual obedience to the government which is rendered by the bulk of the community, partly arises, therefore, in almost every society, from the cause which I now have described: namely, a perception, by the bulk of the community, of the utility of political government, or a preference by the bulk of the community, of any government to anarchy. And this is the only cause of the habitual obedience in question, which is common to all societies, or nearly all societies. It therefore is the only cause of the habitual obedience in question, which the present general disquisition can properly embrace. The causes of the obedience in question which are peculiar to particular societies, belong to the province of statistics, or the province of particular history.

The only general cause of the permanence of political governments, and the only general cause of the origin of political governments, are exactly or nearly alike. Though every government has arisen in part from specific or particular causes, almost every government must have arisen in part from the following general cause: namely, that the bulk of the natural society from which the political was formed, were desirous of escaping to a state of government, from a state of nature or anarchy. If they liked specially the government to which they submitted, their general perception of the utility of government concurred with their special inclination. If they disliked the government to which they submitted, their general perception of the utility of government controlled and mastered their repugnance.

The specific or particular causes of specific or particular governments, are rather appropriate matter for particular history, than for the present general disquisition.

The position ‘that every government continues through the people’s consent,’ and the position ‘that every government arises through the people’s consent,’ examined and explained.

According to a current opinion (or according to a current expression), the permanence and origin of every government are owing to the people’s consent: that is to say, every government continues through the consent of the people, or the bulk of the political community: and every government arises through the consent of the people, or the bulk of the natural society from which the political is formed. According to the same opinion dressed in a different phrase, the power of the sovereign flows from the people, or the people is the fountain of sovereign power.

Now the permanence of every government depends on the 296habitual obedience which it receives from the bulk of the community. For if the bulk of the community were fully determined to destroy it, and to brave and endure the evils through which they must pass to their object, the might of the government itself, with the might of the minority attached to it, would scarcely suffice to preserve it, or even to retard its subversion. And though it were aided by foreign governments, and therefore were more than a match for the disaffected and rebellious people, it hardly could reduce them to subjection, or constrain them to permanent obedience, in case they hated it mortally, and were prepared to resist it to the death.—But all obedience is voluntary or free, or every party who obeys consents to obey. In other words, every party who obeys wills the obedience which he renders, or is determined to render it by some motive or another. That acquiescence which is purely involuntary, or which is purely the consequence of physical compulsion or restraint, is not obedience or submission. If a man condemned to imprisonment were dragged to the prison by the jailers, he would not obey or submit. But if he were liable to imprisonment in the event of his refusing to walk to it, and if he were determined to walk to it by a fear of that further restraint, the man would render obedience to the sentence or command of the judge. Moved by his dislike of the contingent punishment, he would consent to the infliction of the present.—Since, then, a government continues through the obedience of the people, and since the obedience of the people is voluntary or free, every government continues through the consent of the people, or the bulk of the political society. If they like the government, they are determined to obey it habitually or to consent to its continuance, by their special inclination or attachment. If they hate the government, they are determined to obey it habitually, or to consent to its continuance, by their dread of a violent revolution. They consent to what they abhor, because they avoid thereby what they abhor more.—As correctly or truly apprehended, the position ‘that every government continues through the people’s consent,’ merely amounts to this: That, in every society political and independent, the people are determined by motives of some description or another, to obey their government habitually: and that, if the bulk of the community ceased to obey it habitually, the government would cease to exist.

But the position in question, as it is often understood, is taken with one or another of the two following meanings.

Taken with the first of those meanings, the position amounts 297to this: That the bulk of every community, without inconvenience to themselves, can abolish the established government: and that being able to abolish it without inconvenience to themselves, they yet consent to its continuance or pay it habitual obedience. Or, taken with the first of those meanings, the position amounts to this: That the bulk of every community approve of the established government, or prefer it to every government which could be substituted for it: and that they consent to its continuance, or pay it habitual obedience, by reason of that their approbation or by reason of that their preference. As thus understood, the position is ridiculously false: the habitual obedience of the people in most or many communities, arising wholly or partly from their fear of the probable evils which they might suffer by resistance.

Taken with the second of those meanings, the position amounts to this: That, if the bulk of a community dislike the established government, the government ought not to continue: or that, if the bulk of a community dislike the established government, the government therefore is bad or pernicious, and the general good of the community requires its abolition. And, if every actual society were adequately instructed or enlightened, the position, as thus understood, would approach nearly to the truth. For the dislike of an enlightened people towards their established government, would beget a violent presumption that the government was faulty or imperfect. But, in every actual society, the government has neglected to instruct the people in sound political science; or pains have been taken by the government, or the classes that influence the government, to exclude the bulk of the community from sound political science, and to perpetuate or prolong the prejudices which weaken and distort their undertakings. Every society, therefore, is inadequately instructed or enlightened: And, in most or many societies the love or hate of the people towards their established government would scarcely beget a presumption that the government was good or bad. An ignorant people may love their established government, though it positively crosses the purpose for which it ought to exist: though, by cherishing pernicious institutions and fostering mischievous prejudices, it positively prevents the progress in useful knowledge and in happiness, which its subjects would make spontaneously if it simply were careless of their good. If the goodness of an established government be proportioned to the love of the people, the priest-bestridden government of besotted Portugal or 298Spain is probably the best of governments: As weighed against Miguel and Ferdinand, Trajan and Aurelius, or Frederic and Joseph, were fools and malignant tyrants. And as an ignorant people may love their established government, though it positively crosses the purpose for which it ought to exist, so may an ignorant people hate their established government, though it labours strenuously and wisely to further the general weal. The dislike of the French people to the ministry of the godlike Turgot, amply evinces the melancholy truth. They stupidly thwarted the measures of their warmest and wisest friend, and made common cause with his and their enemies: with the rabble of nobles and priests who strove to uphold misrule, and to crush the reforming ministry with a load of calumny and ridicule.

That the permanence of every government is owing to the people’s consent, and that the origin of every government is owing to the people’s consent, are two positions so closely allied, that what I have said of the former will nearly apply to the latter.

Every government has arisen through the consent of the people, or the bulk of the natural society from which the political was formed. For the bulk of the natural society from which a political is formed, submit freely or voluntarily to the inchoate political government. Or (changing the phrase) their submission is a consequence of motives, or they will the submission which they render.

But a special approbation of the government to which they freely submit, or a preference of that government to every other government, may not be their motive to submission. Although they submit to it freely, the government perhaps is forced upon them: that is to say, they could not withhold their submission from that particular government, unless they struggled through evils which they are loath to endure, or unless they resisted to the death. Determined by a fear of the evils which would follow a refusal to submit (and, probably, by a general perception of the utility of political government), they freely submit to a government from which they are specially averse.

The expression ‘that every government arises through the people’s consent,’ is often uttered with the following meaning: That the bulk of a natural society about to become a political, or the inchoate subjects of an inchoate political government, promise, expressly or tacitly, to obey the future sovereign. The expression, however, as uttered with the meaning in question, 299confounds consent and promise, and therefore is grossly incorrect. That the inchoate subjects of every inchoate government will or consent to obey it, is one proposition: that they promise, expressly or tacitly, to render it obedience, is another proposition. Inasmuch as they actually obey, they will or consent to obey: or their will or consent to obey, is evinced by their actual obedience. But a will to render obedience, as evinced by actual obedience, is not of necessity a tacit promise to render it: although by a promise to render obedience, a will or consent to render it is commonly expressed or intimated.

That the inchoate subjects of every inchoate government promise to render it obedience, is a position involved by an hypothesis which I shall examine in the next section.

The hypothesis of the original covenant or the fundamental civil pact.

In every community ruled by a monarch, the subject members of the community lie under duties to the monarch; and in every community ruled by a sovereign body, the subject members of the community (including the several members of the body itself), lie under duties to the body in its collective and sovereign capacity. In every community ruled by a monarch, the monarch lies under duties towards his subjects: and in every community ruled by a sovereign body, the collective and sovereign body lies under duties to its subjects (including its own members considered severally).

The duties of the subjects towards the sovereign government, are partly religious, partly legal, and partly moral.

The religious duties of the subjects towards the sovereign government, are creatures of the Divine law as known through the principle of utility. If it thoroughly accomplish the purpose for which it ought to exist, or further the general weal to the greatest possible extent, the subjects are bound religiously to pay it habitual obedience. And, if the general good which probably would follow submission outweigh the general good which probably would follow resistance, the subjects are bound religiously to pay it habitual obedience, although it accomplish imperfectly its proper purpose or end.—The legal duties of the subjects towards the sovereign government, are creatures of positive laws which itself has imposed upon them, or which are incumbent upon them by its own authority and might.—The moral duties of the subjects towards the sovereign government, are creatures of positive morality. They mainly are creatures of laws (in the improper acceptation of the term) which the general opinion of the community itself sets to its several members.

The duties of the sovereign government towards the subjects 300are partly religious and partly moral. If it lay under legal duties towards the subjects, it were not a supreme, but were merely a subordinate government.

Its religious duties towards the subjects, are creatures of the Divine law as known through the principle of utility. It is bound by the Divine law as known through the principle of utility, to advance as far as is possible the weal or good of mankind: and, to advance as far as is possible the weal or good of mankind, it commonly must labour directly and particularly to advance as far as is possible the happiness of its own community.—Its moral duties towards the subjects, are creatures of positive morality. They mainly are creatures of laws (in the improper acceptation of the term) which the general opinion of its own community lays or imposes upon it.

It follows from the foregoing analysis, that the duties of the subjects towards the sovereign government, with the duties of the sovereign government towards the subjects, originate respectively in three several sources: namely, the Divine law (as indicated by the principle of utility), positive law, and positive morality. And, to my understanding, it seems that we account sufficiently for the origin of those obligations, when we simply refer them to those their obvious fountains. It seems to my understanding, that an ampler solution of their origin is not in the least requisite, and, indeed, is impossible. But there are many writers on political government and society, who are not content to account for their origin, by simply referring them to those their manifest sources. It seems to the writers in question, that we want an ampler solution of the origin of those obligations, or, at least, of the origin of such of them as are imposed by the law of God. And, to find that ampler solution which they believe requisite, those writers resort to the hypothesis of the original covenant or contract, or the fundamental civil pact.^(x)

By the writers who resort to it, this renowned and not exploded hypothesis is imagined and rendered variously. But the purport or effect of the hypothesis, as it is imagined and rendered by most of those writers, may be stated generally thus:

To the formation of every society political and independent, 301or to the institution of every πόλις or civitas, all its future members then in being are joint or concurring parties: for all are parties to an agreement in which it then originates, and which is also the basis whereon it afterwards rests. As being the necessary source of the independent political society, or as being a condition necessarily preceding its existence, this agreement of all is styled the original covenant: as being the necessary basis whereon the civitas afterwards rests, it is styled pactum civile fundamentale.—In the process of making this covenant or pact, or the process of forming the society political and independent, there are three several stages: which three several stages may be described in the following manner. 1. The future members of the community just about to be created, jointly resolve to unite themselves into an independent political society: signifying and determining withal the paramount purpose of their union, or even more or fewer of its subordinate or instrumental ends. And here I must briefly remark, that the paramount purpose of their union, or the paramount purpose of the community just about to be created, is the paramount purpose (let it be what it may) for which a society political and independent ought to be founded and perpetuated. By the writers who resort to the hypothesis, this paramount purpose or absolute end is conceived differently: their several conceptions of this purpose or end, differing with the several natures of their respective ethical systems. To writers who admit the system which I style the theory of utility, this purpose or end is the advancement of human happiness. To a multitude of writers who have flourished and flourish in Germany, the following is the truly magnificent though somewhat mysterious object of political government and society: namely, the extension over the earth, or over its human inhabitants, of the empire of right or justice. It would seem that this right or justice, like the good Ulpian’s justice, is absolute, eternal, and immutable. It would seem that this right or justice is not a creature of law: that it was anterior to every law; exists independently of every law; and is the measure or test of all law and morality. Consequently, it is not the right or justice which is a creature of the law of God, and to which the name of ‘justice’ is often applied emphatically. It rather is a something, perfectly self-existent, to which his law conforms, or to which his law should conform. I, therefore, cannot understand it, and will not affect to explain it. Merely guessing at what it may be, I take it for the right or justice mentioned in a preceding note: I take it 302for general utility darkly conceived and expressed. Let it be what it may, it doubtless is excellently good, or is superlatively fair or high, or (in a breath) is pre-eminently worthy of praise. For, compared with the extension of its empire over mankind, the mere advancement of their happiness is a mean and contemptible object. 2. Having resolved to unite themselves into an independent political society, all the members of the inchoate community jointly determine the constitution of its sovereign political government. In other words, they jointly determine the member or members in whom the sovereignty shall reside: and, in case they will that the sovereignty shall reside in more than one, they jointly determine the mode wherein the sovereign number shall share the sovereign powers. 3. The process of forming the independent political society, or the process of forming its supreme political government, is completed by promises given and accepted: namely, by a promise of the inchoate sovereign to the inchoate subjects, by promises of the latter to the former, and by a promise of each of the latter to all and each of the rest. The promise made by the sovereign, and the promises made by the subjects, are made to a common object: namely, the accomplishment of the paramount purpose of the independent political society, and of such of its subordinate purposes as were signified by the resolution to form it. The purport of the promise made by the sovereign, and the purport of the promises made by the subjects, are, therefore, the following. The sovereign promises generally to govern to the paramount end of the independent political society: and, if any of its subordinate ends were signified by the resolution to form it, the sovereign moreover promises specifically to govern specifically to those subordinate ends. The subjects promise to render to the sovereign a qualified or conditional obedience: that is to say, to render to the sovereign all the obedience which shall consist with that paramount purpose and those subordinate purposes.—The resolution of the members to unite themselves into an independent political society, is styled pactum unionis. Their determination of the constitution or structure of the sovereign political government, is styled pactum constitutionis or pactum ordinationis. The promise of the sovereign to the subjects, with the promises of the subjects to the sovereign and to one another, are styled pactum subjectionis: for, through the promises of the subjects, or through the promises of the subjects coupled with the promise of the sovereign, the former are placed completely in a state of subjection to the latter, or the 303relation of subjection and sovereignty arises between the parties. But of the so-called pact of union, the so-called pact constituent, and the so-called pact of subjection, the last only is properly a convention. The so-called pact of union and the so called pact constituent are properly resolves or determinations introductory to the pact of subjection: the pact of subjection being the original covenant or the fundamental civil pact.—Through this original covenants or this fundamental pact, the sovereign is bound (or at least is bound religiously) to govern as is mentioned above: and the subjects are bound (or, at least, are bound religiously) to render to the sovereign for the time being, the obedience above described. And the binding virtue of this fundamental pact is not confined to the founders of the independent political society. The binding virtue of this fundamental pact extends to the following members of the same community. For the promises which the founders of the community made for themselves respectively, import similar promises which they make for their respective successors. Through the promise made by the original sovereign, following sovereigns are bound (or at least, are bound religiously) to govern as is mentioned above. Through the promises made by the original subjects, following subjects are bound (or at least, are bound religiously) to render to the sovereign for the time being, the obedience above described.—In every society political and independent, the duties of the sovereign towards the subjects (or the religious duties of the sovereign towards the subjects) spring from an original covenant like that which I now have delineated: And in every society political and independent, the duties of the subjects towards the sovereign (or the religious duties of the subjects towards the sovereign) arise from a similar pact. Unless we suppose that such an agreement is incumbent on the sovereign and subjects, we cannot account adequately for those their respective obligations. Unless the subjects were held to render it by an agreement that they shall render it, the subjects would not be obliged, or would not be obliged sufficiently, to render to the sovereign the requisite obedience: that is to say, the obedience requisite to the accomplishment of the proper purpose or end of the independent political society. Unless the sovereign were held by an agreement to govern as is mentioned above, the sovereign would not be obliged, or would not be obliged sufficiently, from governing despotically or arbitrarily: that is to say, governing with little or no regard to the proper purpose or end of a supreme political government.

304 Such, I believe, is the general purport of the hypothesis, as it is imagined and rendered by most of the writers who resort to it.

But, as I have remarked above, the writers who resort to the hypothesis imagine and render it variously.—According, for example, to some of those writers, The original subjects, covenanting for themselves and their followers, promise obedience to the original and following sovereigns. But the original sovereign is not a promising party to the fundamental civil pact. The original sovereign does not agree with the subjects, that the sovereign powers shall be used to a given end or ends, or that those powers shall be used in a given mode or modes.—And by the different writers who render the hypothesis thus, the purport of the subjects’ promises is imagined. For example: Some suppose that the obedience promised by the subjects, is the qualified or conditional obedience briefly described above; whilst others suppose that the obedience promised by the subjects, is an obedience passive or unlimited.—The writers, in short, who suppose an original covenant, think variously concerning the nature of the end for which a supreme government ought to exist. They think moreover variously concerning the extent of the obedience which a supreme government ought to receive from its subjects: And to his own opinion concerning the nature of that end, or to his own opinion concerning the extent of that obedience, each of the writers in question endeavours to shape the hypothesis.—But though the writers who resort to the hypothesis imagine and render it variously, they concur in this: That the duties of the subjects towards the sovereign (or the religious duties of the subjects towards the sovereign) are creatures of the original covenant And the writers who fancy that the original sovereign was a promising party to the pact, also concur in this: That the duties of the sovereign towards the subjects (or the religious duties of the sovereign towards the subjects) are engendered by the same agreement.

A complete though concise exposition of the various forms or shapes in which various writers imagine and render the hypothesis, would fill a considerable volume. Besides, the ensuing strictures apply exactly, or may be fitted easily, to any original covenant that has been or can be conceived; although they are directed more particularly to the fancied original covenant which I have delineated above. My statement of the purport of the hypothesis, I, therefore, conclude here. And I now will suggest shortly a few of the conclusive objections to which the hypothesis is open.

305 1. To account for the duties of subjects towards their sovereign government, or for those of the sovereign government towards its subjects, or for those of each of the parties towards the other, is the scope of every writer who supposes an original covenant.—But, to account for the duties of subjects towards their sovereign government, or for those of the sovereign government towards its subjects, we need not resort to the hypothesis of a fundamental civil pact. We sufficiently account for the origin of those respective obligations, when we refer them simply (or without the supposition of an original covenant) to their apparent and obvious fountains: namely, the law of God, positive law, and positive morality.—Besides, although the formation of an independent political society were really preceded by a fundamental civil pact, scarce any of the duties lying thereafter on the subjects, or of the duties lying thereafter on the sovereign, would be engendered or influenced by that foregoing convention.—The hypothesis, therefore, of an original covenant, is needless, and is worse than needless. It affects to assign the cause of certain phænomena: namely, the duties of subjects towards their sovereign government, or the duties of the sovereign government towards its subjects, or the duties of each of the parties towards the other. But the cause which it assigns is superfluous; inasmuch as there are other causes which are at once obvious and adequate: And that superfluous cause is inefficient as well as superfluous, or could not have produced the phæmomena whereof it is the fancied source.

It will appear from the following analysis, that, although the formation of an independent political society were really preceded by an original covenant, scarce any of the duties lying thereafter on the subjects, or of the duties lying thereafter on the sovereign, would be engendered or affected by that foregoing agreement. In other words, the covenant would hardly oblige (legally, religiously, or morally) the original or following subjects, or the original or following sovereigns.

Every convention which obliges legally (or every contract properly so called) derives its legal efficacy from a positive law. Speaking exactly, it is not the convention that obliges legally, or that engenders the legal duty: but the law obliges legally, or engenders the legal duty, through the convention. In other words, the positive law annexes the duty to the convention: or it determines that duties of the given class shall follow conventions of the given description.—Consequently, if the sovereign government were bound legally by the fundamental 306civil pact, the legal duty lying on the government were the creature of a positive law: that is to say, the legal duty lying on the government were the creature of a positive law annexing the duty to the pact. And, seeing that a law set by the government to itself were merely a law through a metaphor, the positive law annexing the duty to the pact would be set to the sovereign government by another and superior sovereign. Consequently, the sovereign government legally bound by the pact would be in a state of subjection.—Through a positive law set by their own sovereign, the subjects might be bound legally to keep the original covenant. But the legal or political duty thus incumbent on the subjects, would properly proceed from the law set by their own sovereign, and not from the covenant itself. If they were bound legally to keep the original covenant, without a positive law set by their own sovereign, the subjects would be bound legally to keep the original covenant, through a positive law set by another sovereign: that is to say, they would be in a state of subjection to their own sovereign government, and also to a sovereign government conferring rights upon their own.

Every convention which obliges (properly or improperly), derives its efficacy from law (proper or improper). As obliging legally, a convention derives its efficacy from law positive: As obliging religiously or morally, it derives its efficacy from the law of God or from positive morality.—Consequently, if the sovereign or subjects were bound religiously by the fundamental civil pact, the religious duty lying on the sovereign, or the religious duty lying on the subjects, would properly proceed from the Divine law, and not from the pact itself. The party bound religiously would be bound by the law of God through the original covenant: or the religious duty lying on the party, would be annexed to the original covenant by the law of God.

Now the proper absolute end of an independent political society, and the nature of the index to the law of God, are conceived differently by different men. But whatever be the absolute end of an independent political society, and whatever be the nature of the index to the law of God, the sovereign would be bound religiously, without an original covenant, to govern to that absolute end: whilst the subjects would be bound religiously, without an original covenant, to render to the sovereign the obedience which the accomplishment of the end might require. Consequently, whether it consisted or conflicted with that proper absolute end, the original covenant 307would not oblige religiously either of the two parties.—If the original covenant consisted with that absolute end, the original covenant would be superfluous, and therefore would be inoperative. The religious duties lying on the sovereign and subjects, would not be effects or consequences, mediately or immediately, of the fundamental civil pact. Inasmuch as the Divine law would impose those religious duties, although the pact had not been made, they would not be effects or consequences annexed to the pact by the law, or would not be imposed by the law through the pact.—If the original covenant conflicted with that absolute end, it would also conflict with the law which is the source of religious obligations, and would not oblige religiously the sovereign government or its subjects.

For example: Let us suppose that the principle of utility is the index to the law of God; and that, since the principle of utility is the index to the law of God, the greatest possible advancement of the common happiness or weal is the proper absolute end of an independent political society. Let us suppose, moreover, that the accomplishment of this absolute end was the scope of the original covenant. Now no religious obligation would be laid on the sovereign or subjects through the fundamental pact. For the sovereign would be bound religiously, without the fundamental pact, to govern to the very end at which its authors had aimed: whilst the subjects would be bound religiously, without the fundamental pact, to render to the sovereign the obedience which the accomplishment of the end might require. And if the accomplishment of this same end were not the scope of the pact, the pact would conflict with the law as known through the principle of utility, and would not oblige religiously either of the two parties. To make a promise which general utility condemns, is an offence against the law of God: but to break a promise of a generally pernicious tendency, is the fulfilment of a religious duty.

And though the original sovereign or the original subjects might have been bound religiously by the original covenant, why or how should it bind religiously the following sovereigns or subjects? Duties to the subjects for the time being, would be laid by the law of God on all the following sovereigns; and duties to the sovereign for the time being, would be laid by the law of God on all the following subjects: but why should those obligations be laid on those following parties, through the fundamental pact? through or in consequence of a pact made without their authority, and even without their knowledge? 308Legal obligations often lie upon parties (as, for example, upon heirs or administrators), through or in consequence of promises made by other parties whose legal representatives they are: whose faculties or means of fulfilling obligations devolve or descend to them by virtue of positive law. And I perceive readily, why the legal obligations which are consequent on those promises, extend from the makers of the promises to the parties who legally represent them. It is expedient, for various reasons, that positive law should impose obligations on the makers of certain promises: and for the same, or nearly the same, reasons, it is expedient that the legal duties which are laid on the makers themselves, should pass to the parties who legally represent them, and who take their faculties or means. But I am unable to perceive, why or how a promise of the original sovereign or subjects should bind religiously the following sovereigns or subjects: Though I see that the cases of legal obligation to which I now have adverted, probably suggested the groundless conceit to those who devised the hypothesis of a fundamental civil pact.

If the sovereign were bound morally to keep the original covenant, the sovereign would be bound by opinions current amongst the subjects, to govern to the absolute end at which its authors had aimed: And if the subjects were bound morally to keep the original covenant, the subjects would be bound severally by opinions of the community at large, to render to the sovereign the obedience which the accomplishment of the end might require. But the moral obligations thus incumbent on the sovereign, with the moral obligations thus incumbent on the subjects, would not be engendered or affected by the original covenant. They would not be imposed by the positive morality of the community, through or in consequence of the pact. For the opinions obliging the sovereign to govern to that absolute end, with the opinions obliging the subjects to render that requisite obedience, would not be consequents of the pact, but would have been its antecedents: inasmuch as the pact itself would have been made by the founders of the community, because those very opinions were held by all or most of them.

We may, if we like, imagine and assume, that the fancied original covenant was conceived and constructed by its authors, with some particularity and precision: that, having determined the absolute end of their union, it specified some of the ends positive or negative, or some of the means or modes positive or negative, through which the sovereign government should rule 309to that absolute end. The founders, for example, of the independent political society (like the Roman people who adopted the Twelve Tables), might have adverted specially to the monstrous and palpable mischiefs of ex post facto legislation: and therefore the fancied covenant might have determined specially, that the sovereign government about to be formed should forbear from legislation of the kind. And if any of those positive or negative ends were specified by the original covenant, the promise of the subjects to render obedience to the sovereign, was made with special reservations; it was not extended to any of the cases wherein the sovereign might deviate from any of the subordinate ends which the covenant determined specially.

Now the bulk or generality of the subjects, in an independent political community, might think alike or uniformly concerning the absolute end to which their sovereign government ought to rule: and yet their uniform opinions concerning that absolute end might bind or control their sovereign very imperfectly. Notwithstanding the uniformity of their opinions concerning that absolute end, the bulk of the subjects might think variously concerning the conduct of their sovereign: since the proper absolute end of a sovereign political government, or the absolute end for which it ought to exist, is inevitably conceived in a form, or is inevitably stated in expressions, extremely abstract and vague. For example: The bulk or generality of the subjects might possibly concur in thinking, that the proper absolute end of their sovereign political government was the greatest possible advancement of the general or common weal: but whether a positive law made by it ex post facto did or did not comport with its proper absolute end, is clearly a question which they might answer variously, notwithstanding the uniformity of their opinions concerning that paramount purpose. Unless, then, the bulk of the subjects thought alike or uniformly concerning more or fewer of its proper subordinate ends, they hardly would oppose to the government, in any particular case, a uniform, simultaneous, and effectual resistance. Consequently, the sovereign government would not be affected constantly by the fear of an effectual resistance from the subject members of the community: and, consequently, their general and uniform opinions concerning its paramount purpose would bind or control it feebly.—But if the mass of the subjects thought alike or uniformly concerning more or fewer of its proper subordinate ends, the uniform opinions of the mass, concerning those sub310ordinate ends, would probably control it potently. Speaking generally, the proper subordinate ends of a sovereign political government (let those ends or means be what they may) may be imagined in forms, or may be stated in expressions, which are neither extremely abstract, nor extremely vague. Consequently, if the government ventured to deviate from any of the subordinate ends to which those uniform opinions were decidedly favourable, the bulk or generality of the subjects would probably unite in resenting, and even in resisting its measures: for if they tried its measures by one and the same standard, and if that standard or test were determinate and not dubious, their respective opinions concerning its measures would exactly or nearly tally. Consequently, a fear of encountering an effectual resistance, in case it should venture to deviate from any of those ends, would constantly hold the government to all the subordinate ends which the uniform opinions of the mass decidedly favoured.—The extent to which a government is bound by the opinions of its subjects, and the efficacy of the moral duties which their opinions impose upon it, therefore depend mainly on the two following causes: First, the number of its subordinate ends (or the number of the ends subserving its absolute end) concerning which the mass of its subjects think alike or uniformly: secondly, the degree of clearness and precision with which they conceive the ends in respect whereof their opinions thus coincide. The greater is that number, and the greater is that degree, the more extensively, and the more effectually, is the government bound or controlled by the positive morality of the community.

Now it follows from what I have premised, that, if an original covenant had determined clearly and precisely some of the subordinate ends whereto the sovereign should rule, the sovereign would be bound effectually by the positive morality of the community, to rule to the subordinate ends which the covenant had thus specified: supposing (I, of course, understand) that those same subordinate ends were favoured by opinions and sentiments which the mass of the subjects for the time being held and felt. And here (it might be argued) the sovereign would be bound morally to rule to those same ends, through the fundamental pact, or in consequence of the fundamental pact. For (it might be said) the efficacy of the opinions binding the sovereign government would mainly arise from the clearness and precision with which those same ends were conceived by the mass of the subjects; whilst the clearness and 311precision of their conceptions would mainly arise from the clearness and precision with which those same ends had been specified by the original covenant. It will, however, appear on a moment’s reflection, that the opinions of the generality of the subjects, concerning those same ends, would not be engendered by but rather would have engendered the covenant: For if most of the subject founders of the independent political society had not been affected by opinions exactly similar, why were those same ends specially determined by the covenant of which those subject founders were the principal authors? And, granting that the clearness with which they were specified by the covenant would impart an answering clearness to the conceptions of the following subjects, that effect on the opinions held by the following subjects would not be wrought by the covenant as being a covenant or pact: that is to say, as being a promise, or mutual promises, proffered and accepted. That effect would be wrought by the covenant as being a luminous statement of those same subordinate ends. And any similar statement which might circulate widely (as a similar statement, for example, by a popular and respected writer), would work a similar effect on the opinions of the following subjects. Stating clearly and precisely those same subordinate ends, it would naturally give to their conceptions of those same subordinate ends a corresponding clearness and precision.

The following (I think) is the only, or nearly the only case, wherein an original covenant, as being a covenant or pact, might generate or influence any of the duties lying on the sovereign or subjects.

It might be believed by the bulk of the subjects, that an agreement or convention (or a promise proffered and accepted) has that mysterious efficacy which is expressly or tacitly ascribed to it by those who resort to the hypothesis of a fundamental civil pact.—It might be believed by the bulk of the subjects, that unless their sovereign government had promised so to govern, it would not be bound by the law of God, or would not be bound sufficiently by the law of God, to govern to what they esteemed its proper absolute end. It might be believed moreover by the bulk of the subjects, that the promise made by the original sovereign was a promise made in effect by each of the following sovereigns, and therefore it might be believed by the bulk of the subjects, that their sovereign government was bound religiously to govern to that absolute end, rather because it had promised to govern to that absolute end, than by reason 312of the intrinsic worth belonging to the end itself.—Now, if the mass of the subjects potently believed these positions, the duties of the government towards its subjects, which the positive morality of the community imposed upon it, would be engendered or affected by the original covenant. They would be imposed upon it, wholly or in part, because the original covenant had preceded or accompanied the institution of the independent political society. For if it departed from any of the ends determined by the original covenant, the mass of its subjects would be moved to anger (and perhaps to eventual rebellion), by its breach of its promise, real or supposed, rather than by that misrule of which they esteemed it guilty. Its breach of its promise, as being a breach of a promise, would be the cause of their offence, wholly or in part. For they would impute to the promise, real or supposed, a proper and absolute worth; or they would care for the promise, real or supposed, without regard to its scope and tendency.

It appears from the foregoing analysis, that, although the formation of the independent political society had really been preceded by a fundamental civil pact, none of the legal or religious duties lying on the sovereign or subjects could be engendered or influenced by that preceding convention: that there is only a single case, or are only a few cases, wherein it could engender or influence any of the moral duties lying on the same parties. It will appear from the following analysis, that, where it might engender or influence any of those moral duties, that preceding convention would probably be pernicious.

Of the duties of the sovereign towards the subjects, and of the duties of the subjects towards the sovereign, it is only those which are moral, or are imposed by positive morality, that any original covenant could possibly affect. And, considered with reference to those, an original covenant would be simply useless, or would be positively pernicious.

An original covenant would be simply useless, if it merely determined the absolute end of the sovereign political government: if it merely determined that the absolute end of the government was the greatest possible advancement of the common happiness or weal. For though the covenant might give uniformity to the opinions of the mass of the subjects, it would only affect their opinions concerning that absolute end: And, as I have shown already, the uniformity of their opinions concerning the paramount purpose, would hardly influence the conduct of their sovereign political government.

313 But the covenant might specify some of the means, or some of the subordinate or instrumental ends, through which the government should rule to that its absolute end, or through which it should so rule as to further the common weal. And as specially determining any of those means, or any of the subordinate ends to which the government should rule, the original covenant would be simply useless, or would be positively pernicious.

For the opinions of the following members of the independent political community, concerning the subordinate ends to which the government should rule, would or would be not affected by the covenant or pact of the founders.

If the covenant of the founders of the community did not affect the opinions of its following members, the covenant would be simply useless.

If the covenant of the founders of the community did affect the opinions of its following members, the covenant probably would be positively pernicious. For the opinions of the following members would probably be affected by the covenant as being a covenant or pact made by the founders. They probably would impute to the subordinate ends specified by the original covenant, a worth extrinsic and arbitrary, or independent of their intrinsic merits. A belief that the specified ends were of a useful or beneficent tendency, or were ends tending to the furtherance of the common happiness or weal, would not be their reason, or would not be their only reason, for regarding the ends with respect. They probably would respect the specified ends, or probably would partly respect them, because the venerable founders of the independent political society (by the venerable covenant or pact which was the basis of the social fabric) had determined that those same ends were some of the ends or means through which the weal of the community might be furthered by its sovereign government. Now the venerable age or times wherein the community was founded, would probably be less enlightened (notwithstanding its claims to veneration) than any of the ensuing and degenerate ages through which the community might endure. Consequently, the following pernicious effect would be wrought by the original covenant. The opinions held in an age comparatively ignorant, concerning the subordinate ends to which the government should rule, would influence, more or less, through the medium of the covenant, the opinions held, concerning those ends, in ages comparatively knowing.—Let us suppose, for example, that the formation of the British 314community was preceded by a fundamental pact. Let us suppose (a ‘most unforced’ supposition), that the ignorant founders of the community deemed foreign commerce hurtful to domestic industry. Let us, therefore, suppose, moreover, that the government about to be formed promised for itself and its successors, to protect the industry of its own society, by forbidding and preventing the importation of foreign manufactures. Now if the fundamental pact made by our worthy ancestors were devoutly reverenced by many of ourselves, it would hinder the diffusion of sound œconomical doctrines through the present community. The present sovereign government would, therefore, be prevented by the pact, from legislating wisely and usefully in regard to our commercial intercourse with other independent nations. If the government attempted to withdraw the restrictions which the laws of preceding governments have laid on our foreign commerce, the fallacies which now are current, and the nonsense which now is in vogue, would not be the only fallacies, and would not be the only nonsense, wherewith the haters of improvement would belabour the audacious innovators. All who delighted in ‘things ancient,’ would certainly accuse it of infringing a principle which was part of the very basis whereon the community rested: which the wise and venerable authors of the fundamental pact itself had formerly adopted and consecrated. Nay, the lovers of darkness assuredly would affirm, and probably would potently believe, that the government was incompetent to withdraw the restrictions which the laws of preceding governments have laid on our foreign commerce: that being, as it were, a privy of the first or original government, it was estopped by the solemn promise which that government had given.

Promises or oaths on the part of the original sovereign, or promises or oaths on the part of succeeding sovereigns, are not the efficient securities, moral or religious, for beneficent government or rule.—The best of moral securities, or the best of the securities yielded by positive morality, would arise from a wide diffusion, through the mass of the subjects, of the soundest political science which the lights of the age could afford. If they conceived correctly the paramount end of their government, with the means or subordinate ends through which it must accomplish that end, none of its measures would be grossly foolish or wicked, and its conduct positive and negative would commonly be wise and beneficent.—The best of religious securities, or the best of the securities yielded by religious convictions, 315would arise from worthy opinions, held by rulers and subjects, concerning the wishes and purposes of the Good and Wise Monarch, and concerning the nature of the duties which he lays upon earthly sovereigns.

2. It appears from the foregoing strictures on the hypothesis of the original covenant, that the hypothesis is needless, and is worse than needless: that we are able to account sufficiently, without resorting to the hypothesis, for the duties of subjects towards their sovereign government, with the duties of the sovereign government towards its subjects; and that, though the formation of the independent political society had really been preceded by a fundamental civil pact, scarce any of those obligations would be engendered or influenced by that preceding agreement. It will appear from the following strictures, that the hypothesis of the fundamental pact is not only a fiction, but is a fiction approaching to an impossibility: that the institution of a πόλις or civitas, or the formation of a society political and independent, was never preceded or accompanied, and could hardly be preceded or accompanied, by an original covenant properly so called, or by aught resembling the idea of a proper original covenant.

Every convention properly so called, or every pact or agreement properly so called, consists of a promise (or mutual promises) proffered and accepted. Wherever mutual promises are proffered and accepted, there are, in strictness, two or more conventions: for the promise proffered by each, and accepted by the other of the agreeing parties, is of itself an agreement. But where the performance of either of the promises is made by either to depend on the performance of the other, the several conventions are cross or implicated conventions, and commonly are deemed, therefore, one convention.—Where one only of the agreeing parties gives or passes a promise, the promise which is proffered by the one, and which is accepted by the other, is, in the language of jurists, ‘a convention unilateral.’ Where each of the agreeing parties gives or passes a promise, and the performance of either of the promises is made to depend on the performance of the other, the several promises respectively proffered and accepted, are, in the language of jurists, a ‘convention bilateral.’ Where each of the agreeing parties gives or passes a promise, but the performance of either of the promises is not made to depend on the performance of the other, each of the several conventions is a separate unilateral convention, although the several conventions be made at one time. For example: If I promise you to render you a 316service, and if you accept the proffered promise, the promise proffered and accepted forms a convention unilateral. If I promise you to render you a service, and you promise me to render me a service therefor, the promises respectively proffered, if they are respectively accepted, form a convention bilateral. If each of us promise the other to render the other a service, but the render of either of the services is not made to depend on the render of the other, the promises proffered and accepted are separate unilateral conventions, although they be proffered and accepted at one and the same time.—Since, then, a convention bilateral is formed by the implication of several unilateral conventions, every convention is properly a unilateral convention, or a promise proffered and accepted.

The essentials of a convention may be stated generally thus. 1. The promisor, or the party who proffers the promise, promises the promisee, or the party to whom it is proffered, that he will do or perform some given act or acts, will forbear or abstain from some given act or acts, or will do or perform and also forbear or abstain. And the acts or forbearances which he promises, or the acts and forbearances which he promises, may be styled the object of his promise, and also the object of the convention. 2. The promisor signifies to the promisee, that he intends to do the acts, or to observe the forbearances, which form the object of his promise. If he signifies this his intention by spoken or written words (or by signs which custom or usage has rendered equivalent to words), his proffered promise is express. If he signifies this his intention by signs of another nature, his proffered promise is still a genuine promise, but is implied or tacit. If, for example, I receive goods from a shopkeeper, telling him that I mean to pay for them, I promise expressly to pay for the goods which I receive: for I signify an intention to pay for them, through spoken or written language. Again: Having been accustomed to receive goods from the shopkeeper, and also to pay for the goods which I have been accustomed to receive, I receive goods which the shopkeeper delivers at my house, without signifying by words spoken or written (or by signs which custom or usage has rendered equivalent to words), any intention or purpose of paying for the goods which he delivers. Consequently, I do not promise expressly to pay for the particular goods. I promise, however, tacitly. For by receiving the particular goods, under the various circumstances which have preceded and accompanied the reception, I signify to the party who delivers them, my intention of 317paying for the goods, as decidedly as I should signify it if I told him that I meant to pay. The only difference between the express, and the tacit or implied promise, lies in the difference between the natures of the signs through which the two intentions are respectively signified or evinced. 3. The promisee accepts the proffered promise. In other words, he signifies to the promisor, expressly or tacitly, his belief or expectation that the latter will do or forbear agreeably to the intention or purpose which the latter has expressed or intimated. Unless the promise be accepted, or such a belief or expectation be signified expressly or tacitly, the promise is not a convention. If the acts or forbearances which form the object of the promise be afterwards done or observed, they are done or observed spontaneously by the promising party, or not by reason of the promise considered as such: for the promise would not be enforced (legally or morally) by a rational supreme government or a sane public opinion. In the technical language of the Roman jurists, and by most of the modern jurists who are familiar with that technical language, a promise proffered but not accepted is styled a pollicitation.

Consequently, the main essentials of a convention are these: First, a signification by the promising party, of his intention to do the acts, or to observe the forbearances, which he promises to do or observe: secondly, a signification by the promisee, that he expects the promising party will fulfil the proffered promise. And that this signification of intention and this signification of expectation are of the very essence of a proper convention or agreement, will appear on a moment’s reflection.

The conventions enforced by positive law or morality, are enforced legally or morally for various reasons. But of the various reasons for enforcing any convention, the following is always one.—Sanctions apart, a convention naturally raises in the mind of the promisee (or a convention tends to raise in the mind of the promisee), an expectation that its object will be accomplished: and to the expectation naturally raised by the convention, he as naturally shapes his conduct. Now, as much of the business of human life turns or moves upon conventions, frequent disappointments of those expectations which conventions naturally excite, would render human society a scene of baffled hopes, and of thwarted projects and labours. To prevent disappointments of such expectations, is therefore a main object of the legal and moral rules whose direct and appropriate purpose is the enforcement of pacts or agreements. But the promisee 318would not entertain the expectation, unless the corresponding, intention were signified by the promising party: and, unless the existence of the expectation were signified by the promisee, the promising party would not be apprised of its existence, although the proffered promise had actually raised it. Without the signification of the intention, there were no promise properly so called: without the signification of the expectation, there were no sufficient reason for enforcing the genuine promise which really may have been proffered.^(y)

It follows from the foregoing statement of the main essentials of a convention, that an original covenant properly so called, or aught resembling the idea of a proper original covenant, could hardly precede the formation of an independent political society.

According to the hypothesis of the original covenant, in so far as it regards the promise of the original sovereign, the sovereign promises to govern to the absolute end of the union (and, perhaps, to more or fewer of its subordinate or instrumental ends). And the promise is proffered to, and is accepted by, all the original subjects. In case the inchoate government be a government of one, the promise passes from the monarch to all the members of the community (excepting the monarch himself). In case the inchoate government be a government of a number, it passes from the sovereign body (in its collective and sovereign capacity) to all the subject members of the inchoate community (including the members of the body considered severally).—According to the hypothesis of the original covenant, in so far as it regards the promise of the original subjects, they promise to render to the sovereign a passive and unlimited obedience, or they promise to render to the sovereign such a qualified obedience 319as shall consist with a given end or with given ends. And the promise of the subjects passes from all the subjects: from all and each of the subjects to the monarch or sovereign body, or from each of the subjects to all and each of the rest. In case the inchoate government be a government of one, it passes from all the members of the inchoate community (excepting the monarch). In case the inchoate government be a government of a number, it passes from all the members of the inchoate community (including the several members of the sovereign body).

Now it appears from the foregoing statement of the main essentials of a convention, that the promise of the sovereign to the subjects would not be a covenant properly, unless the subjects accepted it. But the subjects could hardly accept it, unless they apprehended its object. Unless they apprehended its object, it hardly could raise in their minds any determinate expectation: and unless it raised in their minds a determinate expectation, they hardly could signify virtually any determinate expectation, or could hardly accept virtually the proffered promise. The signs of acceptance which might actually fall from them, would not be signs of virtual acceptance, but would be in reality unmeaning noise or show.—Now the ignorant and weaker portion of the inchoate community (the portion, for example, which was not adult) could hardly apprehend the object of the sovereign’s promise, whether the promise were general or special: whether the sovereign promised generally to govern to the absolute end of the independent political society, or promised moreover specially to govern specially and directly to certain subordinate ends. We know that the great majority, in any actual community, have no determinate notions concerning the absolute end to which their sovereign government ought to rule: that they have no determinate notions concerning the ends or means through which it should aim at the accomplishment of that its paramount purpose. It surely, therefore, were absurd to suppose, that all or many of the members of any inchoate community would have determinate notions (or notions approaching to determinateness) concerning the scope of their union, or concerning the means to its attainment. Consequently, most or many of the original subjects would not apprehend the object of the original sovereign’s promise: and, not apprehending its object, they would not accept it in effect, although they might accept it in show. With regard to most or many of the original subjects, the promise of the original sovereign were hardly a covenant or pact, but were rather a pollicitation.

320 The remarks which I now have made on the promise of the original sovereign, will apply, with a few adaptations, to the promise of the original subjects. If really they proffered to the sovereign (or if really they proffered to one another) that promise to render obedience which the hypothesis supposes or feigns, they would signify expressly or tacitly an intention of fulfilling it. But such a signification of intention could not be made by all of them, or even by most or many of them: for by most or many of them, the object of the fancied promise would not be apprehended determinately, or with a distant approach to determinateness.—If you feign that the promise to obey passes from the subjects to the subjects, you thicken the absurdity of the fiction. You fancy that a promise is proffered by parties to whom the object of the promise is nearly or quite unintelligible: and, seeing that the prornisors are also the promisees, you fancy that the promise is accepted by parties to whom the object of the promise is equally incomprehensible.

If you would suppose an original covenant which as a mere hypothesis will hold water, you must suppose that the society about to be formed is composed entirely of adult members: that all these adult members are persons of sane mind, and even of much sagacity and much judgment: and that being very sagacious and very judicious, they also are perfectly familiar, or at least are passably acquainted, with political and ethical science. On these bare possibilities, you may build an original covenant which shall be a coherent fiction.

It hardly is necessary to add, that the hypothesis of the original covenant, in any of its forms or shapes, has no foundation in actual facts. There is no historical evidence, that the hypothesis has ever been realised: that the formation of any society political and independent has actually been preceded by a proper original covenant, or by aught approaching to the idea.

In a few societies political and independent (as, for example, in the Anglo-American States), the sovereign political government has been determined at once, and agreeably to a scheme or plan. But, even in these societies, the parties who determined the constitution (either as scheming or planning, or as simply voting or adopting it) were merely a slender portion of the whole of the independent community, and were virtually sovereign therein before the constitution was determined: insomuch that the constitution was not constructed by the whole of an inchoate community, but rather was constructed by a fraction of a community already consummate or complete. If you would show 321me an actual case exactly squaring with the idea of a proper original covenant, you must show me a society political and independent, with a government political and sovereign, which all the members of the society who were then in existence jointly founded and constituted. You must show me, also, that all the subject or sovereign authors of this society and government were parties expressly or tacitly to a true or genuine convention resembling the original covenants which I have mentioned above.—In most societies political and independent, the constitution of the supreme government has grown. By which fustian but current phrase, I intend not to intimate that it hath come of itself, or is a marvellous something fashioned without hands. For though we say of governments which we mean to praise, ‘that they are governments of laws, and not governments of men,’ all human governments are governments of men: And, without men to make them, and without men to enforce them, human laws were just nothing at all, or were merely idle words scribbled on paper or parchment. I intend to intimate, by the phrase in question, that the constitution of the supreme government has not been determined at once, or agreeably to a scheme or plan: that positive moral rules of successive generations of the community (and, perhaps, positive laws made by its successive sovereigns) have determined the constitution, with more or less of exactness, slowly and unsystematically. Consequently, the supreme government was not constituted by the original members of the society: Its constitution has been the work of a long series of authors, comprising the original members and many generations of their followers. And the same may be said of most of the ethical maxims which opinions current with the subjects constrain the sovereign to observe. The original sovereign government could not have promised its subjects to govern by those maxims. For the current opinions which actually enforce those maxims, are not coeval with the independent political society, but rather have arisen insensibly since the society was formed.—In some societies political and independent, oaths or promises are made by rulers on their accession to office. But such an oath or promise, and an original covenant to which the original sovereign is a promising party, have little or no resemblance. That the formation of the society political and independent preceded the conception of the oath itself, is commonly implied by the terms of the latter. The swearing party, moreover, is commonly a limited monarch, or occupies some position like that of a limited monarch: that is to say, 322the swearing party is not sovereign, but is merely a limb or member of a sovereign body.

And if actual original covenants might be detected in history, they would not sustain the hypothesis. For, according to the hypothesis, an original covenant necessarily precedes the formation of an independent political society. And in numerous cases of independent political society, the formation of the society, as we know from history, was not preceded by an original covenant: Or, at least, the formation of the society, as we know from history, was not preceded by an express original covenant.

It is said, however, by the advocates of the hypothesis (for the purpose of obviating the difficulty which these negative cases present), that a tacit original covenant preceded the formation of the society, although its formation was not preceded by an express covenant of the kind.

Now (as I have shown above) an actual signification of intention on the part of the promisor, with an actual acceptance of the promise on the part of the promisee, are of the very essence of a genuine convention or pact, be it express, or be it tacit. The only difference between an express, and a tacit or implied convention, lies in this: That, where the convention is express, the intention and acceptance are signified by language, or by signs which custom or usage has rendered equivalent to language: but that, where the convention is tacit or implied, the intention and acceptance are not signified by words, or by signs which custom or usage has made tantamount to words.^(z)

323 Most or many, therefore, of the members of the inchoate society, could not have been parties, as promisors or promisees, to a tacit original covenant. Most or many of the members could not have signified virtually the requisite intention or acceptance: for they could not have conceived the object (as I have shown above) with which, according to the hypothesis, an original covenant is concerned.

Besides, in many of the negative cases to which I now am adverting, the position and deportment of the original sovereign government, and the position and deportment of the bulk of the original subjects, exclude the supposition of a tacit original covenant. For example: Where the original government begins in a violent conquest, it scarcely promises tacitly, by its violences towards the vanquished, that it will make their weal the paramount end of its rule. And a tacit promise to render obedience to the intrusive and hated government, scarcely passes from the reluctant subjects. They presently will to obey it, or presently consent to obey it, because they are determined to obey it, by their fear of its military sword. But the will or consent to obey it presently, to which they are thus determined, is scarcely a tacit promise (or a tacit manifestation of intention) to 324render it future obedience. For they intimate pretty significantly, by the reluctance with which they obey it, that they would kick with all their might against the intrusive government, if the military sword which it brandishes were not so long and fearful.

By the recent and present advocates of the hypothesis of the original covenant (who chiefly are German writers on political government and society), it commonly is admitted that original covenants are not historical facts: that an actual original covenant never preceded the formation of any actual society political and independent. But they zealously maintain, notwithstanding this sweeping admission, that the only sufficient basis of an independent political society is a fundamental civil pact. Their doctrine, therefore, touching the original covenant amounts to this: namely, that the original covenant hath not preceded the formation of any society political and independent: but that though it hath not preceded the formation of any, it yet precedeth inevitably the formation of every.—Such is a taste or sample of the high ideal philosophy which the Germans oppose exultingly to the philosophy of Bacon and Locke: to the earthly, grovelling, empirical philosophy, which deigns to scrutinise facts, or stoops to observation and induction.

It would seem that the propounders of this lucid and coherent doctrine, mean to insist on one or another of the two following positions. 1. That an express original covenant has not preceded the formation of any society political and independent: but that a tacit original covenant (or an original covenant imported by the fact of the formation) necessarily precedes the formation of every society of the kind. 2. That the formation of a society political and independent must have been preceded by a fundamental civil pact, if the sovereign political government be rightful, lawful, or just—‘wenn es rechtsbeständig sein soll:’ Meaning by ‘rightful,’ ‘lawful,’ or ‘just,’ consonant to the law of God (as known somehow or other), or consonant to the right or justice (mentioned in foregoing pages) which exists independently of law, and is the test of all law.

On which of these positions they mean to insist, I cannot determine: for they waver impartially between the two, or evince a perceptible inclination to neither. And an attempt to determine the position on which they mean to insist, were profitless labour: seeing that both positions are false and absurd.—As I have shown above, a tacit original covenant could scarcely precede the formation of an independent political 325society. And, granting the second of the two positions, no sovereign government has been or can be lawful. For, according to their own admission, the formation of a society political and independent was never preceded actually by a fundamental civil pact: And, as I have shown above, a proper original covenant, or aught approaching to the idea, could scarcely precede the formation of any society of the kind.^(α)

3. I close my strictures on the hypothesis of the original covenant, with the following remark:

It would seem that the hypothesis was suggested to its authors, by one or another of these suppositions. 1. Where there is no convention, there is no duty. In other words, whoever is obliged, is obliged through a promise given and accepted. 2. Every convention is necessarily followed by a duty. In other words, wherever a promise is given and accepted, the promising party is obliged through the promise, let its object and tendency be what they may.—It is assumed, expressly or tacitly, by Hobbes, Kant, and others, that he who is bound has necessarily given a promise, and that he who has given a promise is necessarily bound.

It follows from the first supposition, that unless the sovereign and subjects were bound through a pact, neither of the parties would lie under duties to the other. It follows from the second supposition, that if the sovereign and subjects were parties to 326an original covenant (either immediately, or as representing the founders of the community), each of the parties would be bound to the other, assuredly and indissolubly. As the duties of each towards the other would be imposed through a pact, they would possess a certain sacredness which perhaps they might want if they were imposed otherwise.

But both suppositions are grossly and obviously false.—Of religious, legal, and moral duties, some are imposed by the laws which are their respective sources, through or in consequence of conventions. But others are annexed to facts which have no resemblance to a convention, or to aught that can be deemed a promise. Consequently, a sovereign government might lie under duties to its subjects, and its subjects might lie under duties towards itself, though neither it nor its subjects were bound through a pact.—And as duties are annexed to facts which are not pacts or conventions, so are there pacts or conventions which are not followed by duties. Conventions are not enforced by divine or human law, without reference to their objects and tendencies. There are many conventions which positive morality reprobates: There are many which positive law will not sustain, and many which positive law actively annuls: There are many which conflict with the law of God, inasmuch as their tendencies are generally pernicious. Consequently, although the sovereign and subjects were parties to an original covenant, neither the sovereign nor subjects would of necessity be bound by it.

The distinction of sovereign governments into governments de jure and governments de facto.

From the origin or causes of political government and society, I pass to the distinction of sovereign governments into governments de jure and governments de facto. For the two topics are so connected, that the few brief remarks which I shall make on the latter, may be placed aptly at the end of my disquisition on the former.

In respect of the distinction now in question, governments are commonly divided into three kinds: First, governments which are governments de jure and also de facto; secondly, governments which are governments de jure but not de facto; thirdly, governments which are governments de facto but not de jure. A government de jure and also de facto, is a government deemed lawful, or deemed rightful or just, which is present or established: that is to say, which receives presently habitual obedience from the bulk or generality of the members of the independent political community. A government de jure but not de facto, is a government deemed lawful, or deemed rightful or 327just, which, nevertheless, has been supplanted or displaced: that is to say, which receives not presently (although it received formerly) habitual obedience from the bulk of the community. A government de facto but not de jure, is a government deemed unlawful, or deemed wrongful or unjust, which, nevertheless, is present or established: that is to say, which receives presently habitual obedience from the bulk of the community. A government supplanted or displaced, and not deemed lawful, is neither a government de facto nor a government de jure.—Any government deemed lawful, be it established or be it not, is a government de jure. By a government, however, de jure, we often mean a government which is deemed lawful, but which, nevertheless, has been supplanted or displaced. Any established government, be it deemed lawful or be it deemed unlawful, is a government de facto. By a government, however, de facto, we often mean, a government which is deemed unlawful, but which, nevertheless, is established or present.—It scarcely is necessary to add, that every government properly so called is a government de facto. In strictness, a so called government de jure but not de facto, is not a government. It merely is that which was a government once, and which (according to the speaker) ought to be a government still.

In respect of positive law, a sovereign political government which is established or present, is neither lawful nor unlawful: In respect of positive law, it is neither rightful nor wrongful, it is neither just nor unjust. Or (changing the expression) a sovereign political government which is established or present, is neither legal nor illegal.

In every society political and independent, the actual positive law is a creature of the actual sovereign. Although it was positive law under foregoing sovereigns, it is positive law presently, or is positive law, through the power and authority of the present supreme government. For though the present government may have supplanted another, and though the supplanted government be deemed the lawful government, the supplanted government is stripped of the might which is requisite to the enforcement of the law considered as positive law. Consequently, if the law were not enforced by the present supreme government, it would want the appropriate sanctions which are essential to positive law, and, as positive law, would not be law imperative: that is to say, as positive law, it would not be law.—To borrow the language of Hobbes, ‘The legislator is he (not by whose authority the 328law was first made, but) by whose authority it continues to be law.’

Consequently, an established sovereign government, in respect of the positive law of its own independent community, is neither lawful nor unlawful. If it were lawful or unlawful, in respect of the positive law of its own independent community, it were lawful or unlawful by law of its own making, or were lawful or unlawful by its own appointment. Which is absurd.—And if it were lawful or unlawful, in respect of the positive law of another independent community, it were lawful or unlawful by the appointment of another sovereign: that is to say, it were not an actual supreme, but an actual subordinate government Which also is absurd.

In respect of the positive law of that independent community wherein it once was sovereign, a so called government de jure but not de facto, is not, and cannot be, a lawful government: for the positive law of that independent community is now positive law by the authority of the government de facto. And though it now were positive law by the authority of the displaced government, the displaced government, in respect of this law, were neither lawful nor unlawful: for if, in respect of this law, the displaced government were lawful or unlawful, it were lawful or unlawful by law of its own making, or were lawful or unlawful by its own appointment. The truth is, that, in respect of the positive law of that independent community, the supplanted government, though deemed de jure, is unlawful: for, being positive law by the authority of the government de facto, this positive law proscribes the supplanted government, and determines that attempts to restore it are legal wrongs.—In respect of the positive law of another independent community, a so called government de jure but not de facto, is neither lawful nor unlawful. For if, in respect of this law, it were lawful or unlawful, it were lawful or unlawful by the appointment of the law-maker; that is to say, it were not an ousted supreme, but an ousted subordinate government.

In respect, then, of positive law, the distinction of sovereign governments into lawful and unlawful is a distinction without a meaning. For, as tried by this test, or as measured by this standard, a so called government de jure but not de facto cannot be lawful: And, as tried by the same test, or measured by the same standard, a government de facto is neither lawful nor unlawful.

In respect, however, of positive morality, the distinction of 329sovereign governments into lawful and unlawful, is not a distinction without a meaning. For, in respect of positive morality, a government not de facto is not of necessity unlawful. And, in respect of positive morality, the term ‘lawful’ or ‘unlawful,’ as applied to a government de facto, is not of necessity jargon.

A government de facto may be lawful, or a government de facto may be unlawful, in respect of the positive morality of that independent community wherein it is established. If the opinions of the bulk of the community favour the government de facto, the government de facto is morally lawful in respect of the positive morality of that particular society. If the opinions of the bulk of the community be adverse to the government de facto, it is morally unlawful in respect of the same standard. The bulk, however, of the community, may regard it with indifference: or a large portion of the community may regard it with favour, whilst another considerable portion regards it with aversion. And, in either of these cases, it is neither morally lawful, nor morally unlawful, in respect of the positive morality of that independent community wherein it is established.—And what I have said of a government de facto, in regard to the morality of the community wherein it is established, may also be said of a government not a government de facto, in regard to the morality of the community wherein it formerly ruled.

And a government de facto, or a government not de facto, may be morally lawful, or morally unlawful, in respect of the positive morality which obtains between nations or states. Though positive international morality looks mainly at the possession, every government in possession, or every government de facto, is not acknowledged of course by other established governments. In respect, therefore, of positive international morality, a government de facto may be unlawful, whilst a government not de facto may be a government de jure.

A government, moreover, de facto, or a government not de facto, may be lawful or unlawful in respect of the law of God. Tried by the Divine law, as known through the principle of utility, a sovereign government de facto is lawfully a sovereign government, if the general happiness or weal requires its continuance: Tried by the same law, as known through the same index, a sovereign government de facto is not lawfully sovereign, if the general happiness or weal requires its abolition. Tried by the Divine law, as known through the principle of utility, a government not de facto is yet a government de jure, if the general 330happiness or weal requires its restoration: Tried by the same law, as known through the same exponent, a government not de facto is also not de jure, if the general happiness or weal requires its exclusion.^(β)

A general definition of a positive law: Or a general statement of the essential difference by which it is severed from a law not a positive law.

A positive law may be defined generally in the following manner: or the essential difference of a positive law (or the difference which severs it from a law not a positive law) may be stated generally in the following manner.—Every positive law (or every law simply and strictly so called) is set, directly or circuitously, by a sovereign individual or body, to a member or members of the independent political society wherein its author is supreme. In other words, It is set, directly or circuitously, by a monarch or sovereign number, to a person or persons in a state of subjection to its author.

This definition of a positive law is assumed expressly or tacitly throughout the foregoing lectures. But it only approaches to a perfectly complete and perfectly exact definition. And, consequently, the determination of the province of jurisprudence, which is attempted in the lectures, only approaches to a perfectly complete and perfectly exact determination.

This definition of a positive law is assumed expressly or tacitly throughout the foregoing lectures. But it only approaches to a perfectly complete and perfectly exact definition. It is open to certain correctives which I now will briefly suggest.

The party or parties to whom a law is set, or the party or parties on whom a duty is laid, are necessarily obnoxious to the sanction which enforces the law and the duty. In other words, every law properly so called is set by a superior to an inferior or inferiors: It is set by a party armed with might, to a party or parties whom that might can reach. If the party to whom it is set could not be touched by the might of its author, its author would signify to the party a wish or desire, but would not impose on the party a proper and imperative law. Now (speaking generally) a party who is obnoxious to a legal sanction, or to the might of the author of the law which the legal sanction enforces, is a member of the independent community wherein the author is sovereign. In other words, a party who is obnoxious to a legal sanction is a subject of the author of the law to which the sanction is annexed. But as none but members of the community wherein the law obtains are obnoxious to the legal sanction which enforces a positive law, the positive law is imposed exclusively on a member or members of 331that independent community. Although the positive law may affect to oblige strangers (or parties who are not members of that independent community), none but members of that independent community are virtually or truly bound by it.—Besides, if the positive law of one independent community bound legally the members of another, the other independent community were not an independent community, but were merely a subordinate community forming a limb of the first. If it bound the sovereign government of the other independent community, that sovereign government would be in a state of subjection to the sovereign author of the law. If it bound the subject members of the other independent community, the sovereign author of the law would usurp the functions and authority of their own sovereign government: or their own sovereign government would be displaced or supplanted by the foreign and intrusive lawgiver. So that if the positive law of every independent community bound legally the members of others, the subjects in every community would be subject to all sovereigns, and every sovereign government would be sovereign in all societies. In other words, the subject members of every independent community would be in a state of subjection to every supreme government; whilst every supreme government would be the subject of the rest, and, at the same time, would be their sovereign.

Speaking, then, generally, we may say that a positive law is set or directed exclusively to a subject or subjects of its author: or that a positive law is set or directed exclusively to a member or members of the community wherein its author is sovereign. But, in many cases, the positive law of a given independent community imposes a duty on a stranger: on a party who is not a member of the given independent community, or is only a member to certain limited purposes. For such, in these cases, is the position of the stranger, that, though he is properly a member of a foreign independent community, and therefore is properly a subject of a foreign supreme government, he yet is obnoxious to the sanction by which the duty is enforced, or to the might of the author of the law through which the duty is imposed. And such, in these cases, is also the position of the stranger, that the imposition of the legal duty consists with the sovereignty of the government of which he is properly a subject. Although the legal duty is laid on one of its subjects, it is not laid on the foreign government itself: nor does the author of the law, by imposing the legal duty, exercise 332sovereign power in the community of the foreign government, or over one of its subjects as being one of its subjects.—For example: A party not a member of a given independent community, but living within its territory and within the jurisdiction of its sovereign, is bound or obliged, to a certain limited extent by its positive law. Living within the territory, he is obnoxious to the legal sanctions by which the law is enforced. And the legal duties imposed upon him by the law are consistent with the sovereignty of the foreign government of which he is properly a subject. For the duties are not imposed upon the foreign government itself, or upon a party within its independent community: nor are they laid upon the obliged party as being one of its subjects, but as being a member, to certain limited purposes, of the community wherein he resides. Again: If a stranger not residing within the given community be the owner of land or moveables lying within its territory, a convention of the stranger, with any of its members or a stranger, may be enforced against him by its positive law. For if he be sued on the agreement, and judgment be given for the plaintiff, the tribunal may execute it’s judgment by resorting to the land or moveables, although the defendant’s body is beyond the reach of its process. And this execution of the judgment consists with the sovereignty of the government of which the stranger is properly a subject. For the judgment is not executed against that foreign government, or within the independent community of which it is the chief: nor is it executed against the defendant as being one of its subjects, but as owning land or moveables within the jurisdiction of the tribunal. If the judgment were executed within the jurisdiction of the foreign supreme government, the execution would wound the sovereignty of the foreign supreme government, unless the judgment were executed through its permission and authority. And if the judgment were executed through its permission and authority, the duty enforced against the defendant would be imposed in effect by the law of his own community: the law of his own community adopting the law of the other, by reason of a special convention between the respective governments, or of a rule of international morality which the governments acknowledge and observe.—In all the cases, therefore, which I now have noted and exemplified, the positive law of a given independent society may impose a duty on a stranger. By reason of the obstacles mentioned in the last paragraph, the binding virtue of the positive law cannot extend generally to members of foreign 333communities. But in the cases which I now have noted and exemplified those obstacles do not intervene. For the stranger is obnoxious to the sanctions by which the law is enforced: and the enforcement of the law against the stranger is not inconsistent with the sovereignty of a foreign supreme government.

The definition, therefore, of a positive law, which is assumed expressly or tacitly throughout the foregoing lectures, is not a perfectly complete and perfectly exact definition. In the cases noted and exemplified in the last paragraph, a positive law obliges legally, or a positive law is set or directed to, a stranger or strangers: that is to say, a person or persons not of the community wherein the author of the law is sovereign or supreme. Now, since the cases in question are omitted by that definition, the definition is too narrow, or is defective or inadequate. To render that definition complete or adequate, a comprehensive summary of these anomalous cases (or, perhaps, a full enumeration of these anomalous cases) must be tacked to the definition in the way of supplement.—But positive law, the subject of the definition, is the subject of the foregoing attempt to determine the province of jurisprudence. And since the definition is defective or inadequate, and is assumed expressly or tacitly throughout the foregoing lectures, the determination of the province of jurisprudence, which is attempted in those discourses, is not a perfectly complete and perfectly exact determination.

But I think that the foregoing attempt to determine the province of jurisprudence, and the definition of a positive law which the attempt assumes throughout, have as much of completeness and exactness as the scope of the attempt requires.—To determine the province of jurisprudence is to distinguish positive law (the appropriate matter of jurisprudence) from the various objects (noted in the foregoing lectures) to which it is allied or related in the way of resemblance or analogy. But so numerous are the ties by which it is connected with those objects, or so numerous are the points at which it touches those objects, that a perfect determination of the province of jurisprudence were a perfect exposition of the science in all its manifold parts. An adequate exposition of the science (the only adequate determination of the province of jurisprudence) is really the ambitious aim of the entire Course of Lectures of which the foregoing attempt is merely the opening portion. But a perfect determination of the province of jurisprudence is not the purpose of the attempt itself. Its purpose is merely to 334suggest (with as much of completeness and exactness as consist with generality and brevity) the subject of that adequate exposition of the science of jurisprudence, or the subject of that adequate determination of the province of jurisprudence, which is the purpose of the entire Course.—Since such is the scope of the foregoing attempt, the definition of a positive law which it assumes throughout has as much of completeness and exactness as its scope requires. To render that definition complete or adequate, a comprehensive summary of the anomalous cases in question (or, perhaps, a full enumeration of the anomalous cases in question) must be tacked to the definition in the way of supplement. But these anomalous cases belong to the departments of my Course which are concerned with the detail of the science. They hardly were appropriate matter for the foregoing general attempt to determine the province of jurisprudence: for the foregoing attempt to suggest the subject of the science, with as much of completeness and exactness as consist with generality and brevity. Accordingly, the definition or notion of a positive law which is assumed expressly or tacitly throughout the preceding lectures, omits entirely the anomalous cases in question. And the truth of the positions and inferences contained by the preceding lectures is not, I believe, impaired, or is not impaired materially, by this omission and defect.

And though the definition is not complete, it approaches nearly to completeness. Allowing for the omission of the anomalous cases in question, it is, I believe, an adequate definition of its subject. I hardly could have rendered a juster definition of the subject, in brief and abstract expressions: that is to say, unless I had descended from the generals to the detail of the science of jurisprudence.

An explanation of a seeming defect in the foregoing general definition of independent political society.

Defining sovereignty and independent political society (or stating their characters or distinguishing marks), I have said that a given society is a society political and independents if the bulk or generality of its members habitually obey the commands of a determinate and independent party: meaning by ‘a determinate and independent party’ a determinate individual, or a determinate body of individuals, not obeying habitually the express or tacit commands of a determinate human superior.—But who are the members of a given society? By what characters, or by what distinguishing marks, are its members severed from persons who are not of its members? Or how is a given person determined to a given community?—335By the foregoing general definition of independent political society (or the foregoing general statement of its characters or distinguishing marks) the questions which I now have suggested are not resolved or touched: And it may seem, therefore, that the foregoing general definition is not complete or adequate. But, for the following reasons, I believe that the foregoing definition, considered as a general definition, is, notwithstanding, complete or adequate: that a general definition of independent political society (or such a definition as is applicable to every society of the kind) could hardly resolve the questions which I have suggested above.

1. It is not through one mode, or it is not through one cause, that the members of a given society are members of that community. In other words, it is not through one mode, or it is not through one cause, that they are subjects of the person or body sovereign therein. A person may be a member of a given society, or a person may be determined to a given society, by any of numerous modes, or by any of numerous causes: as, for example, by birth within the territory which it occupies; by birth without its territory, but of parents being of its members; by simple residence within it’s territory; or by naturalization.^(γ)—Again: A subject member of one society may be, at the same time, a subject member of another. A person, for example, who is naturalized in one independent society, may yet be a member completely, or to certain limited purposes, of that independent society which he affects to renounce: or a member of one society who simply resides in another, may be a member completely of the former society, and, to limited purposes, a member of the latter. Nay, a person who is sovereign in one society, may be, at the same time, a subject member of another. Such, for example, would be the plight of a so called limited monarch, if he were monarch and autocrator in a foreign independent community.—Now if the foregoing definition of independent political society had affected to resolve the questions which I have suggested above, I must have discussed the topics which I 336have touched in the present paragraph. I must have gone from the generals into the detail of jurisprudence; and therefore I must have wandered from the proper purpose or scope of the foregoing general attempt to determine the province of the science.

2. By a general definition of independent political society (or such a definition as is applicable to every society of the kind), I could not have resolved completely the questions suggested above, although I had discussed the topics touched in the last paragraph. For the modes through which persons are members of particular societies (or the causes by which persons are determined to particular societies) differ in different communities. These modes are fixed differently in different particular societies, by their different particular systems of positive law or morality. In some societies, for example, a person born of aliens within the territory of the community, is, ipso jure, or without an act of his own, a perfect member of the community within whose territory he is born; but in other societies, he is not a perfect member (or is merely a resident alien) unless he acquire the character by fulfilling certain conditions. (See the French Code, Article 9.) It therefore is only in relation to a given particular society that the questions suggested above can be completely resolved.

Restrictions or explanations of the following positions: namely, that a sovereign government cannot be bound legally, and that it cannot have legal rights against its own subjects.

I have assumed expressly or tacitly throughout the foregoing lectures that a sovereign government of one, or a sovereign government of a number in its collective and sovereign capacity, cannot be bound legally. In the sense with which I have assumed it, the position will hold universally. But it needs a slight restriction, or rather a slight explanation, which may be placed conveniently at the close of my present discourse.

It is true universally, that as being the sovereign of the community wherein it is sovereign, a sovereign government cannot be bound legally: And this is the sense with which I have assumed the position throughout the foregoing lectures. But, as being a subject of a foreign supreme government (either generally or to certain limited purposes), it may be bound by laws (simply and strictly so called) of that foreign supreme government. In the case which I now am supposing, the sovereign political government bound by positive laws bears two characters, or bears two persons: namely, the character or person of sovereign in its own independent society, and the character or person of subject in the foreign independent community. And in order to the existence of the case which I now am 337supposing, its two characters or two persons must be distinct in practice, as well as in name and show. The laws which are laid upon it by the foreign supreme government may really be laid upon it as chief in its own society: and, on this supposition, it is subject (in that character) to the sovereign author of the laws, in case the obedience which it yields to them amounts to a habit of obedience. But if the laws be exclusively laid upon it as subject in the foreign community, its sovereignty is not impaired by the obedience which it yields to them, although the obedience amounts to a habit.—The following cases will amply illustrate the meaning which I have stated in general expressions.—Let us suppose that our own king is properly monarch in Hanover: and that our own king, as limited monarch in Britain, is not absolved completely from legal obligation. Now if, as chief in Hanover, he be not in a habit of obedience to the sovereign British parliament, the legal duties incumbent upon him consist with his sovereignty in his German kingdom. For the duties are incumbent upon him (not as autocrator there, but) as limited monarch here: as member of the sovereign body by which he is legally bound.—Before the French Revolution, the sovereign government of the Canton of Bern had money in the English funds: And if the English law empowered it to hold lands, it might be the owner of lands within the English territory, as well as the owner of money in the English funds. Now, assuming that the government of Bern is an owner of lands in England, it also is subject to the legal duties with which property in land is saddled by the English law. But by its subjection to those duties, and its habitual observance of the law through which those duties are imposed, its sovereignty in its own Canton is not annulled or impaired. For the duties are incumbent upon it (not as governing there, but) as owning lands here: as being, to limited purposes, a member of the British community, and obnoxious, through the lands, to the process of the English tribunals.

I have said in a preceding section, that a sovereign government of one, or a sovereign government of a number in its collective and sovereign capacity, cannot have legal rights (in the proper acceptation of the term) against its own subjects. In the sense with which I have advanced it, the position will hold universally. But it needs a slight restriction, or rather a slight explanation, which I now will state or suggest.

It is true universally, that against a subject of its own, as being a subject of its own, a sovereign political government 338cannot have legal rights: And this is the sense with which I have advanced the position. But against a subject of its own, as being generally or partially a subject of a foreign government, a sovereign political government may have legal rights. For example: Let us suppose that a Russian merchant is resident and domiciled in England: that he agrees with the Russian emperor to supply the latter with naval stores: and that the laws of England, or the English tribunals, lend their sanctions to the agreement. Now, according to these suppositions, the emperor bears a right, given by the law of England, against a Russian subject. But the emperor has not the right through a law of his own, or against a Russian subject in that capacity or character. He bears the legal right against a subject of his own, through the positive law of a foreign independent society; and he bears it against his subject (not as being his subject, but) as being, to limited purposes, a subject of a foreign sovereign. And the relative legal duty lying on the Russian merchant consists with the emperor’s autocracy in all the Russias. For since it lies upon the merchant as resident and domiciled in England, the sovereign British parliament, by imposing the duty upon him, does not interfere with the autocrat in his own independent community.

Note to Page 251.

In a note at p. 251, I have referred to Tables drawn out in the blank leaves of Kant’s ‘Entwurf zum ewigen Frieden.’ They are in pencil, and were obviously constructed by Mr. Austin solely for his own satisfaction.

The reader is desired to observe that the opinions embodied in these Tables are not given as Mr. Austin’s. In the note to Table II., as we see, he questions one important assumption.

The Tables are not numbered, so that I have been guided in their arrangement mainly by the order in which they follow.—S. A.

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TABLE I.

TABLE II.

^* On this division, as expounded in Kant’s text, Mr. Austin remarks.—‘The making of a law, and the execution of a law, are necessarily different processes. But how is it necessary that the two processes should be performed by different persons?’

^† The power of appointing representatives, is often called political liberty; i.e. a portion in the Sovereignty.—Kant.

The passage in Kant’s book to which Table II. refers, ends as follows:

‘The sort or mode of government (Regierungsart) is beyond all comparison more important to a people than the form of a Sovereignty (Staatsform); although a great deal also depends on the greater or less adaptability of the latter to attain by gradual reforms to the character of a perfect Republic. To that end, however, the Representative System is absolutely indispensable; without it (be the form of the Sovereignty what it may) the government is despotic and arbitrary. None of the ancient so-called republics knew of this, and they therefore inevitably subsided into despotisms; the most endurable form of which is, the sovereign rule of one.’—Kant, ‘Entwurf,’ p. 29.

In a note, Kant refers here to the often quoted line of Pope, which he translates, ‘die bestgeführte ist die beste.’ ‘If that,’ says he, ‘is equivalent to saying that the best administered is the best administered, Pope (to quote Swift’s expression) only cracked a nut which rewarded him with a maggot. But if it means that the best administered, is also the best constituted government, it is utterly false (grundfalsch); for examples of good government prove nothing in favour of the form. Who ever governed better than Titus or Marcus Aurelius? and yet the one left a Domitian, the other a Commodus, as his successor.’—S. A.

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TABLE III.

TABLE IV.

^* Democracy, or the government of all, is necessarily autocratical or despotic.—Kant.

^† Legislative powers = Sovereignty: Consequently, in no republican (or syncratical) government is the so-called sovereign, sovereign. It is merely co-sovereign with the active portion of the citizens. As Regent (when considered by itself) it is subject-minister of the joint sovereign.—Note by Mr. Austin.

^‡ In the text, Kant says, ‘Alle, die doch nicht alle sind:’ referring obviously to the exceptions made in all schemes of universal suffrage.—S. A.

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TABLE V.

TABLE VI.

TABLE VII.

^* The share of the active citizens in the sovereignty is called political liberty.—Kant.

^† See Krug, vol. iv. p. 36, and Pölitz, vol. i. p. 173 et seq.

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