219 



" 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 and discretion" (/(/., p. 281). 



" Every supreme government is free from legal restraints : or (which is the same proposi- 

 tion dressed in a different phrase), every supreme government is legally despotic. The dis- 

 tinction, 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 /ree are protected against their governments by positive law " {Id., 283). 



" 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 am- 

 biguity. The foremost individual member of a so-called limited monarchy is styled, improp- 

 erly, 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. Since the power of the former 

 is capable of legal limitations, it is thought that the power of the latter might be bound by 

 similar restraints. Whatever may be its origin, the error is remarkable. For the legal in- 

 dependence 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 sov- 

 ereign 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, and by the celebrated advocates of the governments which are branded with the epithet 

 despotic." 



" If it be objected," says Sydney, " that I am a defender of arbitrary powers, I confess 

 I cannot comprehend how any society can 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 rather, in those which are well 

 constituted, this power is so placed as it may be beneficial to the people." 



And he concludes by quoting the opinion of Hobbes, that he " who hath the sovereign 

 power is (not) subject to the civil laws. For if he were subject to the civil laws, he were 

 subject to himself, which were not subjection, but freedom" {Id., 286, 287). 



(o) Of late years many of the works of German jurists have been translated into English, 

 and from this, and the happy cessation of works by English Austinian jurists, of which the 

 English press was previously prolific, it may be inferred that the reign of Austin over the 

 English mind is coming to an end. Indeed, it is said by Sir Frederick Pollock, in the Law 

 Quarterly Review, with what truth I cannot presume to judge, that Austin's theory is now 

 regarded by advanced jurists in that country as " dead and buried ; " and, in a late number 

 of the Review, we find an article by the same author in which a more rational view of the 

 nature of law and of natural right is very aptly expounded. But, as the whole literature of 

 modern English jurisprudence, including the writings of Sir Frederick Pollock himself, has 

 hitherto been devoted to the establishment of the Austinian heresy, he should have ex- 

 plained to his readers the fact that English jurists have been wandering for over forty years 

 in the wilderness of Austin's speculations, and that what they have hitherto taught has been 

 false and misleading. For, until the prejudices engendered by Austin's theory are re- 

 moved, and the sequelae of the disease eradicated, there can be no room for a more rational 

 investigation of the subject, and many readers will have great difficulty in reconciling 

 their former with their present teachings. 



{p) " These are the rights which make the elements of sovereignty, and which are the marks 

 whereby a man may discern in what man or assembly of men, the sovereign power is placed 

 and rests. For these are incommunicable and inseparable. The power to coin money, to dis" 

 pose of the estates and persons ol infant heirs, etc may be transferred by the sover- 

 eign, and yet the power to protect his subjects be retained. But if he transfer the militia, 

 he retains the judicature in vain, for want of execution of the laws ; or, if he grant away 

 the power of raising money, the militia is in vain ; or if he give away the government of 

 doctrines, men will be frightened into rebellion with the fear of spirits. And so, if he con- 



