monwealth in the Emperor; the separation of the Roman Empire into new kingdoms; the further subdivision of the powers of government which prevailed under the Feudal System; the nearly absolute power of Kings in most European countries;—all tended to unsettle and confuse in men's minds the Conception of the State. On the one side, men confounded the King with the State, and conceived that in him was the source of Law and Authority. And in opposition to this, there grew up, in modern times, opinions in which the doctrine of the State, as the source of Rights, was rejected; and Society was represented as a mere Concourse of Individuals. According to this doctrine, individuals compose a State by contributing, to a common stock, the Rights which they naturally possess; sharing the aggregate of such Rights among themselves by common consent; and establishing officers, to carry their agreement into effect.

373 This latter doctrine is quite untenable. Without the existence of a State, we have no Rights; nor can the Rights of the State be at all explained, by any aggregation of the Rights of Individuals. Has the State of England its Right to the National Territory by summing up in itself the Rights of Individual Landholders? Or does not, rather, each Landholder derive his Right to his property from the State? It is plain that the latter, not the former, is the case. The Right to Land is derived from the Law of the Land; that is the Law of the State. Independently of the Law of the Land, no man has a Right to land in England. The National Right is not the result, but the origin of the Rights of individuals. And in like manner, of other National Right. England, as a State, may make war upon France; and in the course of war, may kill Frenchmen, and seize French possessions. But an individual Englishman has no fraction of such a Right. Even if he declares that he will withdraw himself from a share in the national compact, and will act for himself, he is not allowed to do, on a small scale, what the nation does upon a large The Right of the State to make War, depends on its being the State; not on its being a Collection of Individuals.

one.

374 The State is conceived as one; the Individuals of which it is composed being many: the State is conceived as permanent, while the individuals are born and die. Individuals derive, from the State, their Possessions, Privileges, and Condition, in the community; either directly, or by the State determining the Possessions, Privileges, and Condition of the Family, and the Laws of their derivation. The State, as a single permanent agent, in its

proper functions, acts for the many constantly changing individuals, of which it consists. States have, with each other, intercourse of various kinds; making Treaties of Peace, Commerce, or Alliance with each other; and making War on each other, if the necessity arises. The State bounds the legal relations of the individual: the citizens of different states have no legal relations with each other, except through their States.

375 The State is, thus, the necessary Origin of all Rights which exist within itself. It is an Authority, superior to all other Authorities; and from which they are all derived. This Supreme and Original Authority, thus residing in the State, is its Sovereignty. A State which is, in all its internal relations, independent of all other States, is a Sovereign State. In the monarchies of modern Europe, the Supreme Power has been conceived as vested in the Monarch; and he has been looked upon as the Origin of all other power. In such cases, the Monarch is termed the Sovereign: but in Republics, such as the United States of North America, no person is Sovereign. The term Sovereign has also been applied to the People; but a people, deprived of that organization which makes them a State, are not sovereign. They cannot exercise or impart Authority. We can with no propriety speak of the Sovereign People of England; except we mean the State of England; and thus include King, Lords, and Commons, in the term People: if People denote individuals, without governors and magistrates, we can with no more propriety speak of the Sovereign People of England, than of the Sovereign People of Yorkshire. If the People of Yorkshire be not sovereign, because they are under the authority of England; the People of England are not sovereign, because, by the same rule, they are under the authority of King, Lords, and Commons. If there be any established Authority, the Rule of such Authority determines where the Sovereignty resides. If we suppose all established authority annihilated, no body of men is sovereign over any individual; and each man is sovereign, with as good a Right as any other man or any collection of men.

376 If it be said that the People is really the Sovereign Authority, and the source of Rights, because it is by the common consent of the People that the Supreme Authority is conferred upon the sovereign governors of the State: we reply, that such a transfer of sovereign power to governors, by the common consent of the members of a society, has very rarely taken place; and if in a few societies it have ever occurred, such uncommon and extraordinary events afford no grounds for the existence of Rights, in com

munities in which nothing of the kind has ever taken place. And in the next place, we remark, that whenever the members of a society have thus conferred supreme authority upon their governors by common consent, they have, in their actions, presupposed the existence of Rights derived from States. If a body of men, for instance, by common consent frame a government for the country in which they live; or for another country, which they have purchased, and into which they are migrating: they suppose, in the first instance, that the country is theirs as being their native land; and in the second instance, as being a purchase. But yet mere individuals alone cannot have such Property: for Property in land, as we have seen, and purchase of Land, for the like reasons, are creations of the Law.

377 Thus the Conception of a Sovereign State, as the origin and guardian of Rights, is necessary, in order that we may conceive Rights as realities. We may add, that the State is necessarily conceived as a Moral Agent; since it makes war and peace, which it may do justly or unjustly; keeps Treaties, or breaks them; educates its children, or neglects them. What are the Rules of Justice in the actions of States, we must afterwards consider: but it is plain that we must consider the State as an Agent, to whose conduct such Rules are applicable.

378 Since the State is thus a Moral Agent, we may apply to it the Rules of Duty, and the doctrines of Morality, which we have already established. The State has its Duties; Duties of Truth and Justice, as all agree; for all hold it to be the Duty of a State to observe its Treaties, to abstain from the Possessions of another State; and the like. A State has also Duties of Benevolence; To relieve its poor, to liberate its slaves, are often urged upon a State, as manifest Duties of this kind.

And, as the condition of other Duties being performed, the moral Education of its citizens, and consequently of itself, is a Duty of the State. It is its Duty to establish in the minds of its children, and to unfold more and more into constant and progressive operation, the Moral Ideas of Benevolence, Justice, Truth, Purity, and Order.

379 Thus Moral Progress is the Duty of States, as well as of individuals. States, like Individuals, have a continuous existence; a series of purposes and actions; a connected course of being; a Life. During this Life, it is their Duty to conform their being more and more to the Moral Ideas; and this Duty extends to all their actions, and all times of their action.

CHAPTER XXI.

JUSTICE.

380 RIGHTS are, as we have formerly said, necessary conditions of man's action as man; and the State is the necessary origin and basis of Rights: the State defines them and realizes them. But though Rights are thus, in each case, what, by the State, they are defined to be; there is yet, in men's minds, a fundamental conviction, that Rights are not arbitrary. It is conceived that there is a higher Rule, to which Rights ought to conform; that they should be, not only ordered, but just; that there are not only positive Laws, enacted by special bodies of men, but a Natural Law, depending upon the nature of man.

This conception of Natural Law, appears among the Greek Philosophers. "There are," says Aristotle*, "two kinds of Law; that which is proper to each community; and that which is common to all. For there is, as all men perceive more or less clearly, a Natural Justice and Injustice, which men in common recognize, even if they have no society nor compact with each other. Thus the Antigone of Sophocles is made to say, that it was right for her, in spite of the tyrant's command, to bury her brother Polynices, as a part of a Natural Law:

"For this is no command of yesterday,

But everliving Law, its source unknown."

The Books of the Laws of Plato proceed upon the same supposition; and are an attempt to draw out, in detail, the Code of Natural Law which was thus assumed to exist.

381 This Conception of a Natural Law, derived from Reason, and universally valid for all men, was still more distinctly entertained by the Romans. This appears in Cicero's Dialogues on the Laws in several places†, and still more emphatically in a passage in the work De Republica‡: "Law is right Reason, congruous to Nature, pervading all minds, constant, eternal; which calls to Duty by its commands, and repels from wrong doing by its prohibitions; and to the good, does not command or forbid in vain; while the

Rhet. I. 13.

+ Legg. 1. 6; II. 4.

De Rep. III. 22, quoted Lactant. Inst. VI. 8.

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wicked are unmoved by its exhortations and warnings. This Law cannot be annulled, superseded, or overruled. No Senate, no People can loose us from it; no Jurist, no Interpreter, can explain it away. It is not one Law at Rome, another at Athens; one, at present, another at some future time; but one Law, perpetual and immutable, includes all Nations and all times*."

The Law, thus described by Cicero, includes Justice, as well as Law. In the notion of Natural Law, the distinction of Obligations and Duties is not recognized.

382 But it may be said that the Natural Law, thus described by Cicero, nowhere exists. The actual Law is different at Rome and at Athens, and in every different State. And since the Natural Law, of which we speak, cannot be the same as all these Codes, it cannot be the same with any; and is actually nothing.

The reply to this difficulty is contained in what we have already said (96, 97); That the Conceptions of the Fundamental Rights, which Law establishes, are necessary and universal for all men; but that the Definitions of these Rights are Facts, which grow out of the History of each community, and may be different in different times and places. The Fourth Book of this Work will contain a view of this Natural Law; the Laws of Rome and of England being there employed, as the exemplification, not as the necessary form, of Natural Law. We shall there see, that in many instances, the Commentators on these Laws have announced Maxims of Natural Law, as the basis of the actual Law.

383 The Roman term, Jus, (in its sense of a body of Laws, and of Doctrines on which Laws depend,) is especially adapted to denote this Natural Law; for it implies, at the same time, Law and Justice (90). The consistency of the Law with Justice is assumed throughout the Roman Jurisprudence. Thus in the commencement of the Institutes we read†: "Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Jurisprudentia est divinarum atque humanarum rerum scientia, justi atque injusti cognitio." But Justice, thus assumed as identical with Jus, in its results, is a conception which requires to be more exactly defined and developed than we have yet done, before we can so apply it. This we must now attempt to do.

I have omitted the concluding clause of the paragraph, "Of this Law the Author and Giver is God;" as belonging to another part of my subject.

+ Inst. I. I. Justice is the constant

and perpetual intention of giving to each his own Right. Jurisprudence is the knowledge of divine and human things, (as required for that intention :) the science of what is just and unjust.