2 It is true that Austin relegated the discussion of it to the closing chapters of his work on the Province of Jurisprudence, but for this he is criticised by Sir Henry-Maine, who supposes this illogical method to be the result of Austin’s antipathy to anything which seemed to be in accord with Blackstone.

3 Austin says: “In order that an independent society may form a society political, it must not fall short of a number which cannot be fixed with precision, but which may be called considerable, or not extremely minute.” (Austin, p. 231.) He goes on from this to argue that though “an insulated family” of savages is an independent society, of which the father as chief receives “habitual obedience” from the rest, to call the family “a society political and independent” and the father “a monarch or sovereign” would “somewhat smack of the ridiculous.”

Maine, in considering this argument of Austin’s, points out the “seriousness of the admission” that the theory cannot be applied to a family. (Maine, p. 379.)

Lawrence, who appears to favor the Austinian theories, says: “A state may be defined as a political community, the members of which are bound together by the tie of common subjection to some central authority, whose commands the bulk of them habitually obey. This central authority may be vested in an individual 01 a body of individuals; and, though it may be patriarchal, it must be something more than parental; for a family as such is not a political community and, therefore, not a state.” (Lawrence, p. 56.)

4 Maine thus interprets Austin’s definition of sovereignty: “There is, in every independent political community; that is, in every political community not in the habit of obedience to a superior above itself, some single person or some combination of persons, which has the power of compelling the other members of the community to do exactly as it pleases. This single person or group, this individual or this collegiate sovereign (to employ Austin’s phrase), may be found in every independent political community as certainly as the center of gravity in a mass of matter.” (Maine, p. 349.)

5 ProfessorBoughton, in his History of Ancient Peoples (New York, 1897)Google Scholar says: “Primeval men were only gregarious, there was no government—might made right.”

There was no family—physical strength was man’s title to woman’s love. The ties of parentage were instinctively felt and it was along the line of kinship that society at last became origanized into the tribe.

6 Professor Dunning thus states the idea of Jean Bodin (1580) in regard to primitive government: “While human society thus arose through the operation of the social instinct, the state, on the other hand, took its origin from force.” * * * “The view of Aristotle and others, following Herodotus, that the first monarchs were voluntarily chosen by the people for their supereminent virtues is, Bodin says, wrong; history shows that they were military leaders who imposed their sway upon the peoples by force.” (Dunning, p. 89.)

7 “Artificial.” It should be understood that the adjective “artificial,” used to describe a sovereign and sovereignty of a particular type, does not have its primary meaning of “made by art,” “constructed,” but is used in its derivative and secondary sense of “assumed,” “not actual.” The sovereign and sovereignty, to which it is applied, are in contrast to “real sovereign” and real sovereignty; that is, although such sovereign and such sovereignty may be apparently real, generally recognized as real, and operating and operative as if they are real, they are none the less unreal and liable to be divested of their apparent reality by the real sovereign through the exercise of real sovereignty. It is manifest that the word “artificial,” even in its secondary sense, does not in itself describe precisely the sovereign and the sovereignty intended; in fact, no English adjective meets all the requirements; hence it is necessary to explain the special meaning with which the word is used in these notes, and that it is adopted in preference to any other because it more nearly expresses the idea which it is desired to convey.

8 The theory of Johannes Althusius as to the relation of rulers to the sovereignty is thus stated by Professor Dunning: “Sovereignty (maieetas) is defined as the supreme and supereminent power of doing what pertains to the spiritual and bodily welfare of the members of the state. This power inheres by the very nature of the association in the people—the totality, that is of the members of the state.” * * * “But, for the purpose of carrying out the function of the state, duties may be distributed among agents of the sovereign, and it is in this capacity alone that kings and magistrates exercise authority. These functionaries, whatever their power and jurisdiction in reference to the individuals, are by the very nature of the case themselves subject to the people as a whole. Sovereign power, therefore, when properly understood, cannot conceivably be vested in any individual or group of individuals less than the whole people. It cannot be alienated or delegated to any one by the people; so long as there is a people it must possess the sovereignty.” (Dunning, p. 83.)

It should be remembered in reading this analysis of the German philosopher’s theory that his system rested upon the idea that the state was founded on a “social contract” between the persons who composed it. He carries out this contractual relation in the organization of governments. “The king is the executive of the people. * * * His relation to the people is that of agent (tnandatarius) and a contract between him and the people is perfected through his choice and coronation. He undertakes to govern in conformity to the fundamental law of the land, and they agree to obey him.” (Ibid., p. 65.)

9 “Supreme power limited by positive law is a flat contradiction in terms.” (Austin p. 263.)

10 Maine, in his consideration of how far the facts of human nature and society bear out the Austinian idea regarding sovereignty, says: “The first of them is that, in every independent community, there resides the power of acting with irresistible force on the several members of that community. This may be accepted as an actual fact. If all the members of the community had equal physical strength and were unarmed, the power would be a mere result from the superiority of numbers; but as a matter of fact various causes, of which much the most important have been the superior physical strength and the superior armament of portions of the community, have conferred on numerical minorities the power of applying irresistible pressure to the individuals who make up the community as a whole.” (Maine, p. 357.)