State, which is subject to no laws, but is itself the maker and master of them. It may reside either in one person, which is the best and normal form, or in a number of persons. But in either case it is above all law, incapable of limitation or division, and having an absolute claim to the obedience of all its subjects, irrespective of the justice or policy of its acts. Hence Bodin rejects all socalled limited monarchies and restricted governments; and while he calls the Romano-Germanic Empire of his day not a monarchy but an aristocracy, he finds in the French monarchy a pure autocracy of the proper type. Nevertheless even Bodin admits that, in some sort of vague way, the Sovereign is subject to the Law of God and the Law of Nature, and conceives that he is therefore bound to perform any contracts he may make, and to respect the rights of property and of personal freedom.

The boldest and most logically complete counter theory to that of Bodin came from a younger contemporary of his, the Calvinist Iohannes Althusius (John Althus or Althaus), who was born in 1557, and died in 1638. Calvin himself, and most theologians of his school, had returned to the ancient theocratic view that civil power is derived from God, dwelling especially on Romans viii. 1. Althusius, however, bases the government of the State on a contract between the people and the ruler, and proceeds to assert the rights of the former, as the ultimate source of all power and the only true and permanent depositary of sovereignty, to depose the ruler and resume the delegated power when he has violated his duties and transgressed the measure of authority granted to him 1.

Nearly a century later than Bodin a scheme similar to his, but more thorough-going was propounded by Thomas Hobbes of Malmesbury. This scheme, con

1 A full and instructive account of this writer's theories is contained in the admirable book of Professor Otto Gierke, Johannes Althusius und die Entwickelung der naturrechtlichen Staatstheorien, which is a repertory of information regarding mediaeval and post-mediaeval doctrines of the State.

tained in the book entitled Leviathan (and in the treatise De Cive), cannot be appreciated without remembering the time when the book was written, and the circumstances to which it was addressed. So directly does it contemplate them that it may almost be called a political pamphlet gigantic, but a pamphlet. The Civil War was raging. The supreme power in England was disputed between the King and the House of Commons. Ecclesiastics, both Episcopalian and Presbyterian, had been prominent in claiming authority for their religious views, and the nation was splitting up partly on political, partly on ecclesiastical lines. Hobbes was equally hostile to all ecclesiastics-to the Anglican theory of divine right, and to the Presbyterian theory of a covenant of the people with God. Yet he did not like to base society upon mere force, because in that he could find no foundation for justice or moral obligation. Hence he clung to the notion of a contract. But it was a new kind of contract, which, not being made with the Sovereign, and being itself irrevocable, can give no ground for insurrection. Seeing disunion and confusion all around him, and men divided by the pretensions of jarring authorities, Hobbes conceived that the three things. needful were (1) to find a basis for power which should be permanent and inexpugnable, (2) to make power one and indivisible, and (3) to make it absolute and limitless. Perceiving the flaws in the theory, as old (in a rude form) as the thirteenth century, which founded government on a compact between Sovereign and People, he bases his Sovereignty on a covenant of each member of the community with every other member to surrender all their several rights and powers into the hands of one Person (or Body), who thereby becomes Sovereign, but as against whom, seeing that he is not himself a party to the compact, it cannot be annulled by those who made it, because they made it not with him but with one another. His authority is therefore permanent and unlimited; nor is he, like Bodin's Sovereign, bound by any pre

existing institutions. As the people have, by anticipation, ratified all his acts, everything that he does, however harsh, is just, and gives them no ground for complaint. Indeed his power is justified by the Law of Nature, because the three fundamental Laws of Nature are (1) that all men should endeavour to secure peace, (2) that an individual man should renounce his original rights when the majority will to do so, (3) that every man should observe the covenants which have been made by him, including of course this supreme covenant.

Though Hobbes is chiefly concerned with establishing his Sovereign de iure, and making his de iure autocracy complete, he does also conceive him as enjoying complete de facto power. He could indeed do no otherwise, for the Sovereign he describes is not an actual Sovereign. Hobbes does not profess to be anaylsing existing States, or explaining existing institutions. He is presenting an ideal State, and arguing that mankind (and in particular England) will never be rid of their present troubles until this Absolute Sovereign of his has been installed with a de iure title so fully recognized that de facto power will follow. The Civil War had raised grave questions in the de iure sphere, and it was natural to believe that, were those questions out of the way, Practical Mastery would accompany Legal Sovereignty. Nor was it so strange as some may fancy to-day, that a philosopher should doubt the possibility of securing peace and order under a monarch limited by law, or indeed under any government consisting of elements so antagonistic as Crown, Lords, and Commons, were then showing themselves to be. Hobbes is a thinker of singular clearness and precision. He is cogent in argument, and adheres to his main propositions with a consistency greater than Bodin had shown. He sometimes seems more disputatious than philosophical. But the reader who would judge him fairly must bear in mind that he is writing with a view to the circumstances of his own. time, delivering his blows now at the Solemn League

and Covenant, now at the Levellers, now at the parliamentary legalists 1.

Towards the end of the following century Bentham revived Hobbes's doctrine of Sovereignty, taking it over, however, not so much as either an ideal conception, or a suggestion pointing a way out of civil war, but rather as embodying the characteristic features of a normal State. Bentham was a man of extraordinary ingenuity, fertility, and boldness, but he was sometimes heedless; he lived before the days of what we call the historical method, and he had a hearty contempt, if not for history, yet for the legal institutions it had produced, which indeed he thought mostly wrong. Accordingly, neither the absolutistic proclivities of Hobbes, nor the inapplicability of the Hobbesian theory to the majority of existing governments, deterred him from adopting a doctrine which pleased him by its subjection of vague morality to precise legality, and by its vigorous assertion of the legal omnipotence of an authority which a reformer of his drastic type needed for the accomplishment of his purposes. Bentham therefore had practical reasons for his adhesion to the scheme of Hobbes, far removed as he was from Hobbes's notions of the anarchic State of Nature and the original covenant. But John Austin, Bentham's disciple, had less excuse for the use he made of Hobbes's speculations. It has been doubted whether he understood Hobbes. However this may be, he would seem to have misconceived the position in which Hobbes stood, and to have taken the latter's argument for an absolute Sovereign as the best way of constituting authority in a State, as a philosophical analysis of the nature and essence of authority in a normal State. Hobbes was the advocate of a scheme intended to cure actual political evils. Bentham was a practical reformer of the law, which certainly needed reform. Austin, how

1 Hobbes goes so far as to wish to extinguish the right of private judgement, and deems it part of the duty of the Sovereign to prescribe opinions to his subjects, and in particular to inculcate the true doctrine of Sovereignty.

ever, wrote as a jurist, professing to describe the normal and typical State. He was therefore bound to have some regard to facts, and to present a theory of the State which would have explained and correlated the facts, putting them in their natural and true connexion. Instead of this he has given us a theory, which is so far from being that of the normal modern State, that it is applicable to only two kinds of States, those with an omnipotent legislature, of which the United Kingdom and the late South African Republic are almost the only examples, and those with an omnipotent monarch, of which Russia and Montenegro are perhaps the only instances among civilized countries. In nearly all free countries, except the United Kingdom, legislatures are now restrained by Rigid constitutions, so that there is no Sovereign answering the Austinian definition. In all Muhamadan countries the monarch is legally, as well as practically, restrained by his inability to change the Sacred Law; so that, even in those countries where despotism seems at first sight enthroned, the definition will not work. Even in the application of his own theory to the United Kingdom, Austin falls into an error which betrays its radical unsoundness. Though he defines a Sovereign as the determinate superior who receives habitual obedience from the bulk of a given society'— a definition which belongs to the de facto sphere and suits a de facto sovereign, but does not touch the de iure sovereign, who may have no means of enforcing obedience-still it is plain that his eye is chiefly fixed on law and legal right, and that he assumes that to the person who enjoys legal right obedience will in fact be rendered. A Greek tyrant, such as Agathocles at Syracuse, received habitual obedience from the bulk of the Syracusans; but he was clearly not Sovereign de iure 1. But Austin, when he comes to the United Kingdom, finds

• Austin so far feels the difficulty of fitting his theory to the case of tyrannies as to imply that it is to be applied in settled States only. But this is to admit pro tanto the inadequacy of the theory.