law places it 1. We were beginning to know this as far back as the thirteenth century; and just at the time when Bodin's book opens the long disputations of postmediaeval theorists, Sir Thomas Smith set forth the legal supremacy of Parliament in words to whose clearness and amplitude nothing can be added to-day 2. In the seventeenth century a struggle which arose over the respective rights of the component parts of this composite Sovereign was settled de facto by a civil war and by a revolution, which negatived any right of separate legislation claimed for the Crown and placed the judiciary in a position of independence. Yet the change then made de facto was so far from being fully expressed de iure that whoever should to-day study legal texts only, might conclude that the Crown and the House of Lords are just as important members of the composite Sovereign as is the House of Commons. Since 1689 de iure Sovereignty has coincided with de facto obedience. The idea that power de facto naturally goes along with authority de iure has grown to be almost a part of an Englishman's mental constitution, a happy result whereof let us all say-Esto perpetua. France and Germany have been less fortunate in their history, and consequently more prolific in their theories. Yet with the exception of a few belated defenders of the old doctrine of divine right,' Frenchmen are now agreed as to the source of all political power, and the Germans, equally agreed upon this point, are chiefly occupied in debating where, according to the Constitution of their Em

1 Indeed the recognition of the Great Council of the nation as the chief power in the State is still older: though its exclusive supremacy, i.e. its right to interfere with certain branches of the prerogative of one part of it, the Crown, remained long contested.

In his Commonwealth of England (published in 1583): All that ever the people of Rome might do, either Centuriatis comitiis or Tributis, the same may be done by the Parliament of England, which representeth and hath the whole power of the realm, both the head and body. For every Englishman is intended to be there present, either in person or by procuration and attorney, of what pre-eminence, state, dignity, or quality soever he be, from the prince (be he King or Queen) to the lowest person of England, and the consent of the Parliament is taken to be every man's consent.' See an article by Sir F. Pollock in Harvard Law Review for January, 1895, and his First Book of Jurisprudence, p. 247.

pire, sovereign power is to be deemed in point of theory to reside.

After long wanderings through many fields of speculation, as well as many a hard-fought fight, all civilized nations have come back to the point from which the Romans started twenty centuries ago. All hold, as did the Romans, that sovereign power comes in the last resort from the people, and that whoever exercises it in a State, exercises it by delegation from the people. All also hold that in the internal affairs of a State, power legally sovereign-even if the Constitution subjects it to no limitation-ought to be exercised under those moral restraints which are expected from the enlightened opinion of the best citizens, and which earlier thinkers recognized under the name of Natural Law. The sphere in which no Sovereignty de iure exists, that of international relations, where all power is de facto only, is also the sphere in which morality has made least progress, and in which justice and honour are least regarded.

NOTE.

The above article was written, now a good many years ago (though it has been revised subsequently), when I had not before me some writings on the subject of Sovereignty, to which a brief reference ought to be made. First among them comes Sir H. Maine. Two lectures (in the volume entitled the Early History of Institutions) contain an ingenious criticism of the system of Bentham and Austin. This criticism would now command general assent, yet Maine suddenly stops short of the conclusions one would naturally expect. He points out so clearly that most of the propositions of Austin are either unreal or self-evident, that one is inclined to fancy that the praise he nevertheless bestows is due more to respect for the destructive work which he holds Bentham and Austin to have done than to a belief in the substantial value of their doctrines. Mr. F. Harri

son, in an article published in the Fortnightly Review some time afterwards, has a very interesting discussion of these two lectures, and of the Austinian theory, which he also condemns in substance, while handling it tenderly, and holding it to be serviceable as bracing to the reader's mind. Mr. D. G. Ritchie (now professor at the University of St. Andrew's), in an article on 'The Conception of Sovereignty,' in the Annals of the American Academy of Political and Social Science for January, 1891, criticizes the Austinian view more stringently, and makes many acute remarks, with most of which I find myself in agreement. Mr. Henry Sidgwick devotes a chapter in his Science of Politics to the topic, and subjects the notion that Sovereign Power is absolute and irresponsible to a penetrating and suggestive analysis. Sir F. Pollock discusses the question in his Introduction to the Science of Politics, and shows very clearly the unsoundness of the Austinian view. Finally, Mr. C. E. Merriam, junior, in his History of the Theory of Sovereignty since Rousseau, has presented a full and useful account of the chief doctrines put forward on the subject, not stating a theory of his own, but adding pertinent criticisms on the views which he summarizes.

XI

THE LAW OF NATURE

I. THE IDEA OF NATURE AS A RULING FORCE.

It would not be possible, within the compass of anything less than a substantial volume, either to present a philosophical analysis of the ideas comprised or implied in the term Law of Nature, or to set forth and explain the various senses in which that term has been in fact employed, and the influence which, in those various senses, it has exerted as well upon political theory as upon positive law. What I propose to do here is something less ambitious and more closely connected with the study of the Roman law. It is to sketch in outline the process by which the notion of Nature as the source of law grew up and passed into philosophy, and from philosophy into legal thought; to show how the notion took a comparatively definite shape in the minds of the Roman jurists; to describe the practical use to which they put it, and finally to indicate (in the briefest way) some of the consequences in modern times due to the prominence which the Romans assigned to it. The subject has been treated by so many writers, some of them well known to all students, that much of it may be passed over as familiar. My chief aim will be to show that there is far less of a vague and merely abstract character in the conception than has sometimes been attributed to it; that it had a pretty definite meaning to the

Roman jurists; and that they used it in a thoroughly practical spirit.

When man, having attained some mastery over nature, begins to turn his thoughts to an explanation or classification of the phenomena among which he finds himself and of which he is a part, two general observations present themselves to his mind. The first of these is that beneath all the differences which mark off from one another the living creatures, both animals and plants, wherewith the world is filled, there exist certain noticeable similarities in respect of which they may be distributed into groups. Individual animals differ from one another, but all those of a certain kind or species have certain points in common, which constitute their character as a kind. So also different kinds have still many things in common. All sorts of dogs have certain common characteristics; and though dogs differ from wolves, dogs and wolves have many points of resemblance. Now the most general and most remarkable of these phenomena in which living creatures are alike to one another are the processes of growth through which they pass. They are born in a similar way; they enter on life small and weak; they become larger and stronger; they gain teeth at certain periods; they shed their hair or plumage at certain periods; they at last become weaker and die. So plants spring out of the earth from seed, shoot up and give off leaves, bloom into flowers, form seed, wither down again into the earth and die.

From the habit of noting these phenomena four conceptions seem to arise. The first is this, that of the various characteristics of each creature, those which it has in common with other creatures of the same kind are the most deeply rooted and permanent. The second is that these characteristics exist from the origin of the creature, and are its Birth-gift. The third is that one group of the common characteristics, and the most important of them all, is the group which includes the