218 



(l) " Ab exira," continues the author, " this is so. I have always endeavored to show 

 that the effective majority has a right (a legal right) to do just what it pleases. How can 

 the weak set a limit to the power of the strong? .... 



" The time comes in the life of every government when it becomes effete, when it rules 

 the stronger by sheer force of prestige ; when the bubble waits to be pricked, and when 

 the first determined act of resistance brings the whole card-castle down with a crash. 

 The bouleversetnent is usually called a revolution. On the contrary, it is merely the out- 

 ward and visible expression of a death which may have taken place years before. In 

 such cases a limit cau be set to State interference by the simple process of exploding the 

 State. But when a State is (as Hobbes assumes) the embodiment of the will of the 

 effective majority— /orce majeure— o{ the country, then clearly no limit can be set to 

 State interference— a6 extra. And this is why Hobbes (who always built on fact) described 

 the power of the State as absolute. This is why he says that eacli citizen has conveyed 

 all his strength and power to the State. I fail to see any a priori assumption here. It is 

 the plain truth of his time and of our own. .... We must never forget that .... 

 rights, when created, are created by the will of the strong for its own good pleasure, and 

 not carved out of the absolute domain of despotism by a higher court of eternal jus- 

 tice It is the absence of all this a pc/oci vaporings common to Locke, Rousseau and 



Henry George, which renders the writings of Hobbes so fascinating and so instructive." 



(?«) The opprobrium justly resting upon English and American lawyers, for their simplic- 

 ity in accepting this definition, is much heightened by the curious fact that the definition it- 

 self was the result of a blunder on the part of Blackstone, which, in any countrj-, where the 

 slightest knowledge of the Roman law survived among the lawyers, could not have escaped 

 immediate detection. It is a telling commeutaiy on our proficiency in that law, that the 

 mistake remained undiscovered, and the definition universally accepted for over a century. 



The definition obviously originated in the failure of Blackstone to comprehend the term 

 jiis civile as used in the Roman law. According to the conception of the Roman lawyers, 

 the law is made up of two elements, viz., the jus gentium and the jus civile : the former con- 

 sisting of those rational principles which are common to, and constitute the substantive 

 part of all systems of law ; and the latter, of the arbitrary or accidental rules peculiar to 

 any given system. According to this conception, the jus civile constituted not the whole, 

 but only a part of the law ; and, if we have regard to Importance, rather than bulk, a very 

 inconsiderable part of it. But Blackstone unfortunately mistook it for the whole, and 

 avowedly founded his definition upon it. 



(re) I append at length the argument of Austin as variously stated by himself: 



" It results from positions which I shall try to establish .... that the power of a sover- 

 eign is incapable of legal limitation " (Jur., 264). 



" Every positive law, or every law simply and strictly so called, is set directly or circuit- 

 ously 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 " {Id., 270). 



" 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 incap- 

 able of legal limitation. A monarch or sovereign number, bound by a legal duty, were sub- 

 ject 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 " (Id.). 



" The proposition that sovereign power is incapable of legal limitation, will hold univcp- 

 sally or without exception." 



Hence, "against a monarch, properly so called, or against a sovereign number in its col- 

 legiate and sovereign capacity, constitutional law and the law of nations are nearly in the 

 same predicament ; each is positive morality rather than positive law " (Td., 277). 



" Bfat 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 exist, and 

 how do the sujjreme governments, which are commonly deemed free, differ from the supreme 

 governments, which are commonly deemed despotic? 



