207 



"arbitrary powers.'' But tbis is not the case. For, obviously, tbe 

 rigbts of tbe government must be more extensive than its functions, and, 

 within tbe limit of its rigbts, its powers must necessarily be arbitrary. 

 Thus, it is tbe function of a judge to administer justice, but his jurisdic- 

 tion or right is to determine the controversy presented to him ; and 

 though, by mistake or even by deliberate intent, be may decide wrongly, 

 this will not affect his jurisdiction. So, also, according to the Deraocralic 

 doctrine, it is tbe function of the federal government, under the consti- 

 tution, in levying duties, to levy them for purposes of revenue only, and 

 it is a violation of its functions to impose them for the purpose of pro- 

 tecting manufactures, or for any other purpose ; but, in order to enable 

 it to perform this function efficiently, its right must extend in general to 

 the power of imposing duties, even for illegitimate purposes. 



The general acceptance by English jurists of Blackstoae's definition of 

 the law, and of the irrational theory founded upon it by Bentbam and 

 Austin, and tbe long continued dominion established by the theory over 

 the English mind, is one of tbe most curious and instructive phenomena 

 presented in tbe history of mankind. Nor is it possible to estimate fully 

 the deleterious consequences that have thus resulted. Briefly, it may be 

 said that it has eradicated from English jurisprudence, so far as the views 

 of theorists can effect such result, the very notions of justice and reason, 

 and has thus efiectually isolated the English jurists from those of other 

 ages and countries. The theory, and the numerous works of English 

 jurists in support of it, are therefore to be regarded not merely as 

 valueless, but as even positively deleterious to tbe intellect and 

 the conscience of the nation ; and, hence, the first step towards tbe re- 

 habilitation of true jurisprudence must be tbe total eradication, not only 

 of the theory itself, but of all the prejudices and false notions engendered 

 by it. In no other way can we put ourselves m unison with tbe thought 

 of the world on jurisprudence and political science, (o) 



^ 9. Bodin's Argument. 



To tbe above arguments may be added that of Bodin ; who, in the 

 opinion of Sir Frederick Pollock, "is entitled to share with Hobbes the 

 renown of having founded the modern theory of the State,"* and with 

 whom, certainly, the doctrine of sovereignty seems to have originated. 

 In regular course, therefore, his argument should have been considered 

 first ; but, as I am unacquainted with his work, except at second hand, I 

 was compelled to omit its consideration. His argument, as stated by Sir 

 Frederick Pollock, in tbe paragraph cited, is as follows : 



"In every independent community governed by law there must be 

 some authority, whether residing in one person or several, whereby the 

 laws themselves are established and from which they proceed. And this 

 power being the source of law must itself be above the law : not above duty 



* History of the Science of Politics, 19. 



