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the human race are inextricably bound up with the notions of family interdependency and of natural subjection to patriarchal power ;* then, the denial of the title of political on analytical grounds will not interfere with the historical establishment of a political influence, unknown to any other form of law or any other form of sovereign power.
We get rid of any remaining difficulty under this head by the application of the principle which has throughout guided the present discussion of our subject. I mean the continuity, as well as the unity of history, i.e., the unbroken series of influences which has attended each successive stage of man's development. Thus the identification of law with the coercive force of the sovereign, as a tolerably accurate definition of the conception of law, admits of historical proof, because the development of this maxim travels along a path which commences and ends with this identification. It is not so much that any intervening period interrupts the flow of this political conception, but that it does not interrupt it sufficiently to stamp it out.
Before concluding this paper I will endeavour briefly to show the effect of the line of thought which I have adopted upon the middle period, as a period of opposition to the definition. It will be remembered that I took Sir Henry Maine's Indian example as a type of this period, and in order to defend this course we will proceed to consider it more fully. Now the sovereign power of the Sikh chief, and the customary law of the dependent communities are clearly not identical, except by the application of the maxim, what the sovereign permits he commands. But whence the reason of this ? Simply that the state of affairs exhibited in this Indian Province is a transition state from one stage of sovereignty to another. We have originally the communal Government administered by domestic tribunals, which is the distinctive form of Government * Early Institutions p. 2, also Anc, Law, p. 134.
belonging to the period. But placed, as it were, on the top of this system, without any attempt to weld the incongruity into something like homogeneousness, is the fully developed form of a much later system. The Sikhs, who obtained the sovereignty of the Punjaub, were themselves reduced to subjection by a single chieftain belonging to their order, Runjeet Singh.
This Runjeet Singh is the sovereign whom Sir Henry Maine chooses as a type of the opposition of history to the definition of law given by the Analytical Jurists. I doubt, he says, whether once, in all his life, he issued a command which Austin would call a law. But this was only because this sovereignty was not the outcome of the people, was not the index to the progress or position of the State.* The sovereign chief issued commands for his personal aggrandisement; the domestic tribunals administered the rules which governed the intercourse of a member of one family with the member of another family, an intercourse which does not enter into the political questions of the time, an intercourse which the despotical chief has nothing whatever to do with, and cares nothing whatever about. But if, on the other hand, these domestic tribunals be recognised as a portion of the sovereignty of the people (and I cannot conceive any reason why this should not be the case, for they occupy the position of the national council common to all modern sovereignties), then it is plainly evident that the opposition ceases. "
But there is another way of guiding us to the true estimate of this opposition; a way which does not depend upon a matter of opinion or argument, as does the suggestion I have just thrown out. I mean, of course, the consideration of the position that the Sikh sovereign occupies
* That sovereignty, when fully recognised as a portion of the State, should and does, reflect the condition of the people, both Mr. Mill and Mr. Spencer assert. See Mill's Rep. Govt., p. 79, and Spencer's Study of Sociology, p. 398. See also a passage in Montesquieu's Esprit des Lois, Bk. I, cap. iii.
in the history of sovereignty. As I have before stated it is one of transition. I do not mean to say that the sovereignty of the Punjaub itself passed into any succeeding stage, for the whole of India exhibits a state of society to which Sir Henry Maine has very aptly applied the idea of crystallization. But in Aryan history we meet not only with other exact parallels to the Indian Sikh chief, but also with the stages of subsequent development into modern sovereignty. We find an instance in our own Anglo-Saxon history, wherein, from the very earliest times, we can see the process of centralization going on. One family gave way to another family, one village community to another village community, one state to another state, until we finally arrive at a King of the English, and a Bretwalda of Imperial Britain. The uprooting of the old communities was necessary, says Mr. Freeman, if England was ever to become a great and united nation.* And this uprooting took place gradually. We find, first of all, seven different kingdoms in England, each king having done exactly what Runjeet Singh did, and, obtained the sovereignty over his own people, though the national council still administered domestic matters. Then, one kingdom after another was conquered by victorious Wessex, and, finally, we have a king of the English, i.e., a king who was immediate ruler over his own state, and superior lord over the conquered kingdoms.f This same process went on towards its final stage when the sovereignty of the period was represented by the Bretwalda. Both Alfred and Edward became supreme sovereigns of Britain, but it was reserved for the glorious Ethelstan to * Norm. Conq., i, 104.
+ As a proof of the local independence of the English tribes, Mr. Freeman has the following passage referring to so late a date as A.D. 999:-" It is also pro. bable, that in a country which was still so imperfectly united, one part of the kingdom did not greatly care for the misfortunes of another. The devastation of Kent and Wessex would not cause any very deep sorrow or alarm to the Danish people of Northumberland. Local resistance was always possible.” Norm. Conq., i., 325. Also ibid., 351, the example of Ulfcytel.
finally bring this supremacy to a decided issue. He became immediate King of all the Teutonic races in Britain, and superior Lord of all the Celtic principalities,* and in this position the sovereignty of Britain occupied a parallel position to the sovereignty of the Punjaub. The sovereignty of Britain, however, went on developing, while the sovereignty of the Punjaub remained stationary, or rather was wiped out by external conquest. I have now stated my case; and it does not appear to me that a period in the history of sovereignty, which is so clearly a transition period, can be adduced, with any amount of reason, as a period which is capable of giving evidence, either one way or another, as to the general definition of the attributes of sovereignty.
Looking once more at the whole question, what additional light may the present inquiry be said to have thrown on the history of law and sovereignty in their political relationship to each other? It has, first of all, established a chapter in this history which before had not been adequately recognized by historical jurists—a chapter ready to be written from materials well known to be in existence but which had strangely passed out of notice. In the field of the history of Law, no one has shown a clearer appreciation than Sir Henry Maine of the vast importance of parental law (patria potestas) ; no one has placed this importance in so clear a light; no one has established for it so early an historical existence. He places the conception of custom posterior to that of Themistes or Judgments (Anc. Law.5); he places the Themistes posterior to a despotic father's command (ibid. 125); and of the patriarchal family, within which resided the despotical parental law, he says it will be found to have stamped itself on all the great departments of jurisprudence, and may be detected as the true source of many of their most important and most durable characteristics (ibid. 134). Now, this is not only establishing an early, but a continuous history. But to correspond to these
* Freeman's Norm. Conq., i., 62.
phases in the history of Law, there must be phases in the history of sovereignty, travelling along the same path, having the same influences, ending at the same goal. For, Sir Henry Maine himself holds that the duty of inquiry, if not how sovereignty arose, at all events through what stages it has passed, is indispensable to the history of Law.* It is only thus, he adds, that we can assure ourselves in what degree the results of the Austinian analysis tally with facts.
In the first place, then, we have the patriarchal stage. Here the making a law, the putting it into force, the punishing for a breach, are all resident in the patriarchal sovereign. He is at once the law-giver, the judge, and the executioner. The identification between the coercive power of the sovereign and the law is therefore complete.
In the next place, we have the communal stage. The most nearly universal fact, says Sir Henry Maine, which can be asserted respecting the origin of the political communities called states, is that they were formed by the coalescence of groups, the original group having been in no case smaller than the patriarchal family.t It is, therefore, perceivable that, though other political notions must creep up to govern this new associated group, the underlying current of legal ideas—of ideas of law and sovereignty-still continues the same as at the first period, with respect to individual man. The individual is governed by patria potestas, though the corporate unit guides itself, with reference to other corporate units, by custom.
In the third place, we have the modern stage. Here the Analytical Jurists have been able to detect the identification of law with the coercive force of the sovereign. The historian has to show how the barriers which separated individual man from individual man have one by one been removed, and that now, as in the first stage, the sovereign and the subject stand face to face as governor and governed. The degree to which the results of the Austinian analysis
* Early Inst., p. 357. + Early Inst., p. 386.