292 THE POPULAR SCIENCE MONTHLY. 



or large, compared with the whole community. Austin was originally 

 in the army ; and it has been truly remarked that " the permanent 

 traces left " may be seen in his " Province of Jurisprudence." When, 

 undeterred by the exasperating pedantries — the endless distinctions 

 and definitions and repetitions — which serve but to hide his essential 

 doctrines, we ascertain what these are, it becomes manifest that he 

 assimilates civil authority to military authority : taking for gi-anted 

 that the one, as the other, is above question in respect of both origin 

 and range. To get justification for positive law, he takes us back to 

 the absolute sovereignty of the power imposing it — a monarch, an 

 aristocracy, or that larger body of men who have votes in a democ- 

 racy ; which body he also styles the sovereign, in contrast with the 

 remaining portion of the community, which, from incapacity or other 

 cause, remains subject. And having afiirmed, or rather taken for 

 granted, the unlimited authority of the body, simple or compound, 

 small or large, which he styles sovereign, he, of course, has no diffi- 

 culty in deducing the validity of its edicts, which he calls positive 

 law. But the problem is simply moved a stej) further back, and there 

 left unsolved. The true question is. Whence the sovereignty ? What 

 is the assignable warrant for this unqualified supremacy assumed by 

 one, or by a small number, or by a large number, over the rest ? A 

 critic might fitly say — " We will dispense with your process of deriv- 

 ing positive law from unlimited sovereignty : the sequence is obvious 

 enough. But first prove your unlimited sovereignty." 



To this demand there is no response. Analyze his assumption, and 

 the doctrine of Austin proves to have no better basis than that of 

 Hobbes. In the absence of admitted divine descent or appointment, 

 neither single-headed ruler nor many-headed ruler can produce such 

 credentials as the claim to unlimited sovereignty implies. 



"But surely," will come in deafening chorus the reply, "there is 

 the unquestionable right of the majority, which gives unquestionable 

 right to the parliament it elects." 



Yes, now we are coming down to the root of the matter. The 

 divine right of Parliaments means the divine right of majorities. The 

 fundamental assumption made by legislators and people alike is that a 

 majority has powers to which no limits can be put. This is the current 

 theory which all accept, without proof, as a self-evident truth. Never- 

 theless, criticism will, I think, show that this current theory requires 

 a radical modification. 



In an essay on " Railway Morals and Railway Policy," published 

 in the "Edinburgh Review," for October, 1854, I had occasion to deal 

 with the question of a majority's powers, as exemplified in the con- 

 duct of public companies ; and I can not better prepare the way for 

 conclusions presently to be drawn than by quoting some passages 

 from it : 



