who are not married, as a guide to those whom such knowledge affects in one way or another. While buying and selling, giving and bequeathing, are prohibited in some cases altogether, it is yet found expedient to provide a form, or something approaching a form, according to which certain contracts, wills, and solemn acts, which are not otherwise interfered with, must be carried out, before the law will regard these as effective and binding. Moreover, in those parts of the law which will be found to be subsidiary, and to consist merely in machinery for giving effect to the primary laws, such parts consist of forms which must be followed in order to attain more quickly and easily certain objects. Thus in the departments of legislative, judicial, and executive law many of the details consist of formal steps for passing new laws, for electing members of the legislature, for executing sentences and orders of courts of law. The forms thus incorporated into the law are the only parts which can be correctly described as positive law. They are, at most, a small part of the law, and are more or less subordinate and auxiliary to the primary or substantive laws, all of which, as already stated, are merely restrictions on the acts of man, and the forms themselves are only another name for restrictions, for without them mankind would choose many concurrent ways to the same end.

Part of definition—that law is enforced by the supreme power of the state. The laws consist not merely of restrictions, but it is an essential characteristic, that these should be enforced by the supreme power of the state. Who or what then is the supreme power of the state? If one surveys mankind from China to Peru, it will be obvious that the supreme power of a state assumes various forms. There may be a republic, or there may be a monarchy, or some of the many intermediate organisations made up of various elements common to both; and the permutations of these ele ments are so various that the resultant force can scarcely be described, except by comparing and contrasting the leading characteristics of other like forces. Whatever be the structure composed out of so many materials, the supreme power is only a synonym for that human voice which cannot be resisted by any one individual or by any minor combination of them short of the majority; for whenever

one resists it, all the other individuals readily combine consciously or unconsciously to uphold it. Each individual is thus crushed in detail, and the aggregate power of all the individuals who live in one community thus becomes a continuous, and it may be indefinable, source of power, which carries all before it. An irresistible power, reigning absolute over all the individuals in the state, must arrogate or exercise all the means of enforcing or compelling each individual to act so far at least as any one can be said to be compellable by the superior force of all the rest. When a number of individuals within a defined area are all living subject to and acknowledging" one common law, which is the emanation of one supreme power, or is adopted by it-when such laws are made without the dictation of any persons living without the area-when all the difficulties that can arise between the individuals are solved by means found within the same area and irrespectively of any power or dominion elsewhere-then all may be said to be living in one separate and independent self-governing state. The supreme power is merely the organ of the entirety of individuals so living together, and it is of necessity designed and known to be irresistible and inevitable.1 Life in society is impossible without such mutual relations and such a common bond. Each individual must obey such laws whatever they may be.

That there must be a supreme power in every state or in every self-dependent community, is an axiom which cannot be explained, but which must nevertheless be assumed. The whole current and complexion of human faculties and tendencies lead irresistibly to this settled condition of social life. All human affairs gravitate to it. Even in the rudest forms of states, there is a similar power, whether lodged in the patriarch or the elders of the tribe, and it is usually found to assume by turns a legislative, a judicial, and an executive phase. All men, consciously or unconsciously, restrain themselves in presence of it and accept its arbitrament as final and irreversible. Whenever

1 AUSTIN defines a sovereign to be "a determinate human superior not in the habit of obedience to a like superior who receives habitual obedience from the bulk of a given society, and such society is dee ned a political and independent society, and their mutual relation is that of sovereign and subject.”—1 Aust. Jur. 170.

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two or three individuals are gathered together in circumstances, however isolated and abnormal, the relation of superior and subject is evolved. Submission or war to the knife is the substratum of all human companionships. Such an alternative as this always presents itself to each, and confronts him at all the leading turns. As man, however, has a genius for law, he seldom hesitates to submit to a governor. There is nothing irksome in his homage, which is as natural as it is useful. In more complex conditions this sovereign power may be distributed among several individuals according to nice and delicate gradations. But whatever be its form, and whencesoever traced, and by whomsoever assumed or usurped, it is able and ready to enforce its will.

For

every lord who strikes the earth with his foot, a thousand willing vassals start up. Which is the cause and which is the consequence, no philosopher has yet been able to discover. The relation of governor and governed is a ready-made constituent of human life.1 The governor is irresistible, and all men are born to accommodate themselves to the irresistible; the governed are sanguine and faithful, and all men admit that they are the better for being governed, even if the governor is irresistible and peremptory. It is only after long familiarity, that each of these classes begins to reflect why the other was made, and whether that other could not be improved.

Part of definition, that laws must be enforced, and how. -But when a supreme power has been found in the

1 ARISTOTLE remarked that by nature some beings command and others obey for the sake of mutual safety, for a being endowed with discernment and forethought is by nature the superior and governor. -Arist. Pol. b. i. ch. ii. This seems the same idea as was afterwards repeated by Cicero, that man has a genius for law.

POMPEY said he had only to stamp the ground of Italy, and an army would appear.—Plut. Pomp.

It requires only a few courts and judges to dispose of all the litigation of millions of people; and if a handful of men were perversely to do the reverse of what the majority do almost instinctively, these men could give full occupation to all the courts of the country in disposing of the business they alone could thereby create. If the idea of the ancients that law commands a course of action were efficiently and thoroughly acted on, half of the human race would require to be judges and bailiffs.

state able and ready to enforce the law, it is next necessary to explain what is meant by this "enforcing of the law." It is unnecessary to enter into the subtle and recondite inquiries as to the nature and operations of the will. It is enough for all practical purposes to assume and know that the law is addressed to the reason, and seeks to influence human actions solely by and through the will-and by presenting an alternative by way of sanction to each prohibited act. Such alternative is not intended as an end, but solely as a means. It is so contrived as, in the minds of the great majority, to overbalance its counterweight. The fear of worse is that which reacts on the mind, and so induces the act which the law approves.1 It is a sanction rather than a selected alternative, because the supreme power is by no means indifferent which of the two alternatives shall be chosen. On the contrary, the one is intended to be chosen, and the other is put forward as that which the law dislikes, and only presents as an unwelcome substitute. The mode in which the alternative or sanction influences the will is by causing pain to the body or pain to the mind. The pain to the body consists of imprisoning, beating, or killing it. Pain to the mind consists of forcibly depriving the individual of part of his property. Conjoined with both is the degradation which society instinctively associates with disobedience to the irresistible. Thus when the law declares that a man shall not murder, or steal, or commit perjury, there is no physical barrier created to his committing these acts so restrained. On the contrary, he has it in his power to commit them, but as reason teaches him that the inevitable consequence will be some punishment to the body or mind, his intelligence, fortified by other instincts, leads him to avoid what he is inclined to as the only way of not being subjected to the punishment. When he so makes his choice, the object of the law is achieved. Again, when one man owes another money, he is not physically compelled to pay it, but if he do not pay voluntarily, he knows that his property will be

1 Gundling in the beginning, and Adam Smith in the latter half, of the eighteenth century, prominently brought out this characteristic of the law, that it comprised those virtues only which were enforced, or the violation of which was visited with some kind of external suffering.

taken from him compulsorily, in order to bring about circuitously the result he is not inclined to. The foreknowledge of this disagreeable seizure of his property overcomes his reluctance to do what is desired, and when he makes his election and pays the debt, the law has achieved all it professes or expects.1

Such is the effect produced on the will of each individual by the law. The law does not attempt to enforce specific physical performance of any legal duty or obligation. It merely addresses to the understanding of each individual, who fails to perform what is expected, the admonition, that a disagreeable alternative is ready to overtake him; and the knowledge of this inevitable sequel is that, which by reflex influence induces the individual to do what the law requires. This species of reflex influence is all that is meant by saying that the law enforces the restriction, and shuts out some act to which the individual may otherwise be proue. More than thus appealing to the reason and presenting an alternative the law cannot do.2

1 "There are in the mind of man, as there are in nature, certain forces originally implanted which are unchangeable in this sense, that they have an invariable tendency to determine conduct in a particular direction. But as in nature we have a power of commanding her elementary forces by the methods of adjustment, so in the realm of mind we can operate on the same principle by setting one motive to counteract another; and by combination among many motives we can influence in a degree, and to an extent as yet unknown, the conduct and the condition of mankind.”—D. of Argyll's Reign of Law, 408 (3rd ed.).

GUIZOT also says: "It is the true nature of government to manage with dexterity, and to conciliate all the interests and forces of society. The essence of liberty is the simultaneous manifestation of all interests, of all rights, of all forces, and of all social elements."-Guizot, Civ. Eur. Lect. 14.

2 SIR H. S. MAINE, in his " Village Communities," suggests that that part of the current definition of law importing that every law must have a sanction, or be capable of being enforced, fails in its application to the village communities of the East, where nothing analogous can be traced. But it seems a sufficient answer to say that custom or usage, however loose, is the law of barbarians. If any one of the tribe were to deviate from the current usage, the rest of the tribe would expressly or impliedly meet and pass sentence on the innovator, and without formal trial, would with one consent spear or drown, or otherwise dispose of him. In so acting they annex a sanction or command to each custom quite as effectually as if the punishment for disobedience were written in a code. Birds and various