I agree with Mr. Bain in recognising the value of the study thus marked off as preliminary.1 To obtain clear and precise definitions of leading terms is an important, and not altogether easy, achievement in all departments of scientific inquiry but it is specially important in our present subject. But in most cases it seems to me most convenient, in such a treatise as the present, not to separate our discussion of the meaning of essential terms from our discussion of the practical questions in which the terms are used. I therefore

propose, generally, to examine what is essentially involved in the terms "property," "contract," "executive" and "legislative" organs and functions, etc., at the same time as I inquire what rights of property and contract should be maintained in a well-ordered society, and how the organs for exercising executive and legislative function should be constituted. But a preliminary discussion of the fundamental conceptions Government, Law, Right, Obligation, is, I think, expedient before we discuss the general principles on which Government ought to act, lay down laws, distribute rights and obligations. As regards the two first of these fundamental conceptions, Government and Law, the view held (I believe) by the majority of instructed persons in England at the present day-is derived in the main from Austin. I propose, therefore, to take, as the basis for our discussion, a brief summary of Austin's account of Law and Government.

Summary of Austin's Formal Politics.

1. Law, in the sense in which we are now concerned with it the law that it is the main internal function of Government to maintain and enforce, and to modify in detail, from time to time, so far as modification may be required is only one species of what may be properly

1 This preliminary branch, if worked out in complete separation from the practical inquiries from which Mr. Bain distinguishes it, might be called "Formal" as contrasted with "Material" Politics; it would include, as a portion, the study of general jurisprudence, as now commonly distinguished from the theory of legislation.

called "law"; it is distinguished by Austin as "Positive Law."

2. A Law, in the more general sense, may be defined as a command to do or abstain from doing a certain class of acts, issued by a determinate person or body of persons acting as a body, and involving the announcement, express or tacit, of a penalty to be inflicted on any persons who may disobey the command: it being assumed that the individual or body announcing the penalty has the power and purpose of inflicting it.

3. Such commands when issued directly or indirectly by the Sovereign of the community to which the command is addressed, are Positive Laws, or Laws in the strictest sense.

4. Besides Positive Laws there are other important kinds of commands, relating to classes of actions, to which the term "law" might properly be applied, according to the general definition above given. Thus it might be appliedas it often is to morality, regarded as the expression of God's will: since obviously all who recognise a Moral Governor of the world must regard what they hold to be the true moral code as the "Law of God." This code, however, must be carefully distinguished from what Austin calls "Positive Morality," ie. the body of moral rules supported by the public opinion of a given community at a given time since positive morality, though it resembles law in certain important points, differs in others no less important. In the case of both positive morality and positive law we find (1) a wish felt by human beings that other human beings should act (or not act) in a certain way, and (2) some penalty to be expected if the wish is not realised, which (3) causes a general conformity to it. But in the case of Positive Morality the wish is not expressed nor the penalty announced by a determinate body of persons, and the person or persons who will enforce the penalty cannot be known beforehand.1

1 Other kinds of commands that, in Austin's view, might properly be called Laws, are (a) commands issued by one supreme government to another,

5. Confining ourselves now to Positive Law,-or law laid down directly or indirectly by the Sovereign, we see that to get our conception of it clear we require to define Sovereign."

The Sovereign in any community is that determinate person, or aggregate of persons combined in a certain manner, whom the bulk of the community habitually obey, provided that he or it does not habitually obey any one else: hence, it is implied, the community that has a sovereign, strictly speaking, is independent.

6. From this definition two important consequences follow

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(a) That sovereignty cannot, strictly speaking, be legally divided between two or more persons or bodies of persons, acting separately because any such persons or bodies must have, ex hypothesi, powers legally limited in certain directions there are certain things which each of them is by law prevented from doing: but, if so, they are in habitual obedience to the authority that laid down the law, and it is this latter that is the real Sovereign.

E.g. in a federal state, such as the United States of America, sovereignty, strictly speaking, does not belong to the central government nor to the separate governments of the federated states; but to the body, whatever it may be, that is recognised as having authority to alter the conditions of federation.

(b) The power of the Sovereign cannot be legally limited -for, obviously, the Sovereign cannot be coerced to act in a certain way by any penalty threatened to be inflicted by the and (b) commands issued by individuals recognising no political superior; or by private persons or societies within a governed community, if issued "not in pursuance of legal rights." This latter phrase, however, has a certain ambiguity. It might be said that the rules of a club were issued in pursuance of legal rights; since the club has a legal right to impose rules on its members under penalty of expulsion, if such rules are in accordance with the constitution of the club as known to and accepted by such members when they joined it. This ambiguity might perhaps be removed by saying "special legal rights."

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Sovereign! Hence "Constitutional Law"-so called-is properly to be regarded as a branch of Positive Morality, so far as it relates to the actions of the Sovereign.

§ 2. In order that, before criticising this view of the relation of Law to Government, we may appreciate its main purpose and drift as thoroughly as possible, it will be desirable to have before our minds an example of the confusion of thought (as it seemed to them) which Bentham and Austin found in the received exposition of English Law, and which it was their special aim to dispel. We find that Blackstone, while defining Law as "a rule of civil conduct prescribed by the supreme power in a state," still recognises a "Law of Nature" which claims our obedience without being so prescribed, and is indeed "superior in obligation to any other" law. In virtue of this Law of Nature, Blackstone declares, men have "natural rights, such as life and liberty," which "receive no additional strength when declared by the municipal laws to be inviolable"; which "no human legislature has power to abridge or destroy, unless the owner shall himself commit some act that amounts to a forfeiture." Such language was by no means peculiar to Blackstone; a doctrine of this kind was prevalent among jurists of the eighteenth century, and its influence. was still strong when Austin wrote. To Bentham and Austin it seemed to contain a grave and dangerous confusion between (1) Law as it is, here and now, in any given community, and (2) Law as it ought to be, the ideal by which Positive Law ought to be judged and, if possible, rectified. Such an ideal must of course coincide with or be based upon "those eternal and immutable laws of good and evil, to which the Creator himself conforms, and which he has enabled human reason to discover,"-which Blackstone calls "Law of Nature," so far as any such eternal principles are held to be discoverable. But it would be a serious error for any individual Englishman to suppose that this ideal, as conceived by him, was actually established as law in England at the present day, in the sense in which Acts of Parliament are established; and any language which en

courages a man to claim, as valid here and now, rights not secured by the actually established law of his country, is dangerously revolutionary. When, however, we have thus clearly separated the notions of Actual and Ideal Law, what criterion can we give for determining the former? It was the aim of Bentham and Austin to answer this question by pointing to some definite empirically ascertainable fact. As to the "immutable principles of right and wrong" theorists have continually disputed; there are innumerable schools. and sects, and we should be badly off if our rights of personal security, property, etc., had to remain indeterminate until the disputants had convinced each other. But fortunately the law by which as citizens we have to guide our actions may be known without entering into any such. theories: viz. simply by asking what has actually been commanded directly or indirectly by the person or persons in our community whom we and the bulk of the community habitually obey.

And this view of the relation of law to government does, I conceive, correspond fairly well to the facts existing in such a community as England is at the present day—so far, at least, as the law is concerned, that determines the legal rights and obligations of private individuals as such which I propose to call "civil" as distinct from "constitutional" law. The great bulk of Englishmen habitually obey the general directions as to their external conduct that are contained in Acts of Parliament: and though an important part of the laws maintained in force by the decisions of our judges is not derived from Acts of Parliament, still, the interference of Parliament by new statutes has long been so active in all departments of our law, that we may, without a very violent fiction, regard it as approving of whatever it does not abrogate or modify and we incur at least no practically important error in saying, that any new laws that it chose to lay down would be unquestionably adopted by our law-courts as the basis of judicial decisions. / But if we regard Austin's theory as intended to apply to the relation of what has been commonly

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