vessel may remain by agreement of the parties." Kelly, C.B., and Channell, B., agreed in this view, and, as before pointed out, Lord Blackburn, in Lister v. Van Haansbergen, expresses a similar opinion. Then, if Lush's, J., reasoning in Christoffersen v. Hansen (approved by Bramwell, L.J., and Cleasby, B., in Francesco v. Massey, and impliedly adopted by Mellish and Baggallay, L.J.J., in French v. Gerber) be the true test, the absence of any provision giving the shipowner an equivalent advantage would conclusively show that the charterer was not intended to be protected from damages caused by detention beyond the demurrage days. If the principle stated be the true one, it is submitted that the ground of the decision of French v. Gerber in the Court below, is erroneous, and the judgment of the majority in the Court of Appeal, proceeding as it does on the discovery of an equivalent advantage, is tantamount to a reversal of it. The observations of Bramwell, L.J., in Gray v. Carr (p. 548), as to an action lying against the charterer where there had been no advance at the port of loading, and that of Cleasby, B., in Kish v. Corry (p. 561), "I think that the natural meaning of the words liability to cease' is that the charterer's liability is to be put an end to upon a certain event, not that his obligation should cease as regards carrying into effect the contract afterwards," seem (in charters containing no provision for an equivalent advantage) in favour of the inference that the absolution was not intended to apply to a duty incapable of performance until after the condition had been fulfilled.

HERBERT W. LUSH.

IV.-LAW AND SOVEREIGNTY.

HE intimate connexion between law and sovereignty,

THE

or, in other words, between laws and the lawgiver, forms the most important branch of the subject matter of Jurisprudence. The identification of law, or rather of

the force which compels obedience to a law, with the coercive force of the sovereign, was one of the chief results obtained by the Analytical Jurists, in their magnificent work of determining much that had been hitherto vague and unscientific in the study of Jurisprudence. They define every law or rule to be a command; or, to quote the summary of their conception of law, as given by Mr. Justice Markby,† law is the general body of rules which are addressed by the rulers of a political society to the members of that society, and which are generally obeyed. It is, of course, easily perceived that sovereignty is implied in this definition as already existing, though Austin has placed his examination of it last in order of discussion. If, he says, a determinate human superior, not in the 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.‡

Sir Henry Maine's two celebrated lectures on Sovereignty, forming the last, and, in fact, the summary of his series published under the title of "The Early History of Institutions," sound the first warning note of opposition to the analytical identification of law with the coercive force

* Austin's Province of Jurisprudence determined (Campbell's edition), vol. i., p. 90.

+ Elements of Law, sect. 7.

Austin's Jurisprudence, vol. i, p. 226.

of the sovereign. It is true that previous lectures had prepared us to meet this opposition, but until the last volume appeared it had not been distinctly set forth and made the direct object of discussion.

The source of the arguments advanced by Sir Henry Maine, against this definition, is historical rather than juridical. He claims that the customary law of India, and therefore of Aryan history in general, affords historical proof that law is not always the outcome of sovereign power. And this leads him to complain that the analytical definition is applicable only to modern European Law, and not to law in general; that Mr. Austin has arrived at it by a process of "abstraction," and not by a study of history; and that, in consequence of this process, sovereignty has been placed at the apex of his logical sequences, instead of being the very first political element to be investigated and defined. Mr. Justice Markby has already, in these pages, appeared in defence of the practical value of abstract scientific conceptions, on the ground that "what is valuable for one purpose is valueless, or of much less value, for another;" what, therefore, is valuable for the study of Jurisprudence is valueless for the inquirer into the history of early institutions. But admirable as this defence is, there is a much broader platform upon which to judge the value of abstract reasoning. It is contained in the application of the principle enunciated by Mr. Spencer in his First Principles, that all human beliefs originally contained, and, perhaps, still contain, some small amount of verity. The arguments of Sir Henry Maine in his two lectures on Sovereignty, that History should, more than any other science, go hand-inhand with such a closely connected element as Jurisprudence, embrace, therefore, all that he could wish, without destroying the historical value of Analytical Jurisprudence. Analytical reasoning arrives at the conclusion that law may be said to be identical with the coercive force * Ancient Law, p. 7; Village Communities, p. 67.

of the sovereign; and it remains for us to see how far History coincides with this view-how far, in short, History declares this definition of law to be tolerably accurate as a general definition, and not only of modern law in particular.

It will, then, be our task to follow out this process. We must inquire, first of all, into the historical evidence capable of being scientifically applied to the development of sovereignty as one of the political agencies of the progress of mankind. And, in order to do this, it will be necessary to note the forms of society corresponding to the several stages of this development. The bonds of connexion which the sovereignty may be discovered to possess with its subject unit, will, to a great extent, determine our second inquiry, namely, the definition of the law of the period.

The scope of such an inquiry is materially lessened by two important facts. First, the admission that the analytical definition of law is a fact of modern political history; and, secondly, that the application of the comparative method enables us to transfer this definition to the whole realm of fully developed national history, when the barriers of primitive society have been broken away and individual man has to reckon with individual man for the political necessities of his times, instead of sharing his obligations and his rights with a collective social unit. Our present inquiry will, therefore, belong to the earlier portion of the history of sovereignty. Now it is important to note, at this juncture, how far the value of historical evidence on a fact of man's social life can reach. I take it that it rests entirely upon its position in the whole realm of history, not upon its existence at any one ascertained epoch. If, for instance, the evidence be proved to be of the most primordial type, as well as the most developed, then there is strong argument for the origin, the continuous existence, and, in fact, for a pretty clear universal definition

of the fact in question. If, however, the evidence belong solely to a middle period of history, a period which depends upon a prior period for its origin, and upon a subsequent period for its importance, then that evidence appears to me not to obtain the full force of an argument against a fact of modern history. I have put the case in this way in order to meet my subsequent arguments, though, of course, other arrangements of historical phenomena could easily occur to the mind.

*

It is not my intention to make this paper a criticism of Sir Henry Maine, but it becomes necessary to ask now, what is the period of history with which Sir Henry Maine deals? At most with the branching off from the parent stock of those great races to which the world of progressive civilization has invariably belonged-the Semitic and Aryan Races. It is true he recognises the existence of a society in a state of nature, evidence of which, he says, was not forthcoming in Austin's age; but he nowhere treats this epoch historically, or as showing any capability of giving evidence on the subject of Ancient Law. At the farthest, he does not examine, critically at all events, any stage of society beyond that of which the great Indian examples of communal tribeship are types. Within the great unity of history, however (to use by analogy the title of Mr. Freeman's Rede Lecture), there exists a mass of people who have influenced the polity of the human race, and who should influence the historical thought of its most advanced members. History, it has been observed, commenced with the first man's talk to his first child; and the evidences of this history we find not only in modern political nations, but in modern barbarism.t Though the examples of primitive Indian history existing almost down to modern

* Vide Early Institutions, p. 65.

Sir John Lubbock joins issue with Sir H. Maine's historical scope. Vide Primitive Man, Appendix i.; Origin of Civilization, pp. 2 et seq. See also Spencer's Prin. of Soc., i., 106, on the whole question.