² We have seen what is meant by a state. If we add to the marks already given in our definition of it, the further mark that the body or individual who receives the habitual obedience of the community does not render the like obedience to any earthly superior, we are at the conception of a sovereign or independent state, which possesses not only internal sovereignty, or the power of dealing with domestic affairs, but external sovereignty also, the power of dealing with foreign affairs. (Lawrence, p. 56.)

³ The notion of sovereignty and independent political society may be expressed concisely thus: If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.

To that determinate superior the other members of society are subject; or on that determinate superior, the other members of society are dependent. The position of its other members towards that determinate superior, is a sate of subjection or a state of dependence. The mutual relation which subsists between that superior and them, may be styled the relation of sovereign and subject, or the relation of sovereignty and subjection.

Hence it follows, that it is only through an ellipisis, or an abridged form of expression, that the society is styled independent. The party truly independent (independent, that is to say of a determinate human superior), is not the society but the sovereign portion of the society. (Austin, p. 221.)

⁴ These two essentials of real sovereignty, supreme power and independence, are brought out only very distinctly in a quotation from The Neutrality of Great Britain During the American Civil War, by Montague Bernard, which appears in Maine’s International Law, p. 54. The extract is as follows: “By a sovereign state we mean a community organized under a sovereign government of their own, and by a sovereign government we mean a government, however constituted, which exercises the power of making and enforcing laws within a community, and is not itself subject to any superior government. These two factors, the one positive, the other negative, the exercise of power and the absence of superior control, compose the notion of sovereignty and are essential to it.”

⁵ Paley thus defines liberty: “To do what we will, is natural liberty; to do what we will, consistently with the interest of the community to which we belong, is civil liberty.”

⁶ 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. (Austin, p. 274.)

⁷ It is a difficult matter to determine what is constitutional law as distinguished from ordinary statue law, when the enacting body in both cases is the same. * * * But we may assume, I, think, that the sovereignty within the constitution, the general principles of liberty, the form and construction of the government, and the character and extent of the suffrage are natural subjects of constitutional law. (Burgess: vol. i, p. 138.)

⁸ Every positive law, or every law simply and strictly so-called, is set by a sovereign person or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign member, to a person or persons in state of subjection to its author. Even though it spring from another fountain or source it is a positive law, or a law strictly so-called, by the institution of that present sovereign in the character of political superior. Or (borrowing the language of Hobbes) “the legislator is he, not by whose authority the law was first made, but by whose authority it continues to be a law.” (Austin, p. 177.)

Law, properly, is the word of him that by right hath command over others. (Hobbes: The Leviathan, ch. xv.)

⁹ The common law includes those principles, usages, and rules of action applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. * * * A great proportion of the rules and maxims which constitute the immense code of the common law goes into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases. (Kent; Commentaries, 2d Am. ed., p. 471.)

¹⁰ What may be styled “collective consent” is brought out by Austin in the following statement: Every government has arisen through the consent of the people or the bulk of the natural society from which the political was formed. For the bulk of the natural society from which a political is formed, submit freely or voluntarily to the inchoate political government. (Austin, p. 298.)