sarily constitute a compact. And I have already shown, that whatever peculiar arrangements may have occurred in some instances, the essential nature of civil communities and governments is derived from natural law, and they are an intrinsic part of the order of universal human society appointed by God. The true natural state of man is a state of association or society, because it is in conformity with his nature and the obligations arising therefrom. And as those obligations bind him without his consent being necessary, so he is bound, without his consent, to live in civil or politic association and submit to civil government of some sort. He cannot do otherwise without acting contrary to the law of nature, and therefore his consent is superfluous, for the power to consent must imply that of dissenting." And the obligation of each man to perform the duties of the civil state and submit to civil government arises not from his consent, express or implied, but from natural law. It is a necessary consequence of the two primary laws and essential to the order of human society constructed... upon them. This general doctrine is entirely compatible with the fact that in certain instances a man may bind himself by his free will to the observance of some particular laws or obedience to a given magistrate, or become voluntarily a member of a certain civil state. And it is the same when a number or a body of men enter into such political engagements. These are facts which have no effect on the general rules and principles of Public Law, though they belong to the municipal or internal Public Law of the particular state to which they relate.

Savigny treats the subject of the origin of states in a very philosophical manner. Speaking of the influence of the state on private law, he says, that if it be possible to conceive private law as an abstraction extraneous to the state, and founded on a community of ideas and manners, it is the establishment of the judicial power, which, within the state, gives to private law reality and life. But he adds, that we must not believe that there is in history a time anterior to the foundation of the state, and in which private law had an incomplete existence, that is to say, the state of nature. "For each people, as soon as it gives signs of life, is already constituted into a state or politic community. That natural condition of man, or state of nature, is a hypothesis created by the imagination, looking on the people abstractedly from the state."n After some further reflections, Savigny thus proceeds to consider the opinions on the formation of the state.

"The preceding theory on the nature and origin of the state has not been generally admitted. Assemblies of men have often been supposed, undefined and independent of national unity. But this opinion m L. 3, 4, ff. De Reg. Jur.

n

Savigny, Traité de Droit Rom. tom. 1, p. 23, edit. Guenoux, Paris, 1840.

falls to the ground before the fact, that at all periods nations constitute states, and everywhere we find a people constituting the basis of the state. It has been attempted in the Slave States of America, for example, to unite great masses of men without regard to their origin. But these attempts have had bad consequences, and the constitution of the state has met with insurmountable obstacles. I therefore say in answer to those who support this opinion, that originally, and according to the nature of things, all states were formed in the nation or people, by the people and for the people."

error.

"Others represent the creation of the state as an act of individual wills, as the effect of a contract; a system, the consequences of which are as pernicious as they are false. Thus it is supposed, that if the individuals have thought fit to form a state, they might equally not have formed it at all, or have incorporated themselves in another state, or adopted another constitution. Without repeating what I have said of the natural unity of nations, and its necessary consequences, I will only observe that in every case in which such a compact is possible, the state infallibly exists already both in fact and in law; and from that time the matter in question would be, not as to its composition, but as to its decomposition. This erroneous system rests on a double The numerous varieties presented by the constitution of states, that is to say the individual and historical elements, have been looked upon as so many arbitrary acts of the human will. Then the divers significations of the generic term people have been confounded together. Thus this term signifies-1st, that natural unity in which the state receives its birth, and is perpetuated from generation to generation; 2ndly, the union of persons existing contemporaneously, which the state comprises at a determined time; 3rdly, the assemblage of persons not invested with power, that is to say, the governed without the governors; 4thly, in republics (ancient Rome for example), the assembly of citizens in whom, by the constitution, the sovereign power resided. The confusion of all these ideas has led to the error of attributing to the body of the governed, both the abstract right of the people, considered as a natural unity, and the privilege of the Roman populus, and thus placing the sovereignty in the hands of the subjects. If, indeed, without the last step, the sovereignty is attributed to the body of all the contemporaneous individuals, both governors and governed, a more correct result is not obtained. In the first place the state is not composed of all the individuals taken per capita, but of certain orders or classes created by its constitution. For the total number of individuals do not exercise political will or acts. And as you must necessarily subtract the greater number-women and minors-you are reduced to the fiction of representation. And the assemblage of all

the contemporaneous individuals would still not constitute the people, for a people considered under this point of view continues in futurity, and has an imperishable existence."

"But the opinion which I combat has an element of truth. Accident and the arbitrary will of men exercise their influence over the formation of states: conquest has often changed natural frontiers, dismembered nations, and broken their unity. Often, also, the state assimilates to itself a foreign element. But that assimilation operates gradually, and according to certain natural laws. Such events, though frequent in history, are nevertheless anomalies. The people and its organic development still remain as the basis and the natural and regular origin of the state. If in the midst of that operation, external events bring to it a foreign element, a healthy and vigorous people is able to absorb that element by its moral energy. If not, the result of the struggle is a diseased condition of the body politic. This explains how that which was, in its origin, injustice and violence, may, submitted to that power of assimilation, become a legitimate element of the state. But to present these anomalies - these trials which moral power undergoes-as the true origin of states, to fall back on this adventurous opinion as a sole refuge from the dangerous doctrine of a social compact, this must be absolutely rejected, for it is difficult to say whether the remedy be not worse than the evil."

The doctrines of Domat and Savigny show clearly that the supposed original contract is an unnecessary legal fiction. For the real legal origin of states, considered philosophically, is the origin of the obligations by which they are constituted or formed. And those obligations are the different ties which unite men together in society; and their origin is derived from the two primary laws which direct the conduct of man towards his end. Thus Savigny says, that the state derives its birth from an internal force, a superior necessity which impresses upon it a character of individuality; P this necessity engenders the state, developing it out of the universal human society of which politic or civil society is a natural consequence. And whatever may be the political events which have caused the association of men in any given case under a particular government, the legal nature of the state is to be found in the ties and obligations which are consequences of the two primary laws, and part of the secondary Natural

Law.

The doctrine of an original contract between the crown and people was asserted by the Convention Parliament in that famous resolution which declared the vacancy of the crown after the flight of King Savigny, Traité de Droit Rom. tom. 1, p. 27-31. P Ibi, p. 20.

206 James the Second. That position was, indeed, as Hallam observes, rather too theoretical,' and no record of any such contract is to be found in the history of England. It was no doubt resorted to for the purpose of denying the divine right of monarchy, from which the arbitrary and indefeasible right of the crown was plausibly derived. But such a fiction was obviously unnecessary. For the rights of the people as well as those of the crown clearly rest not on contract but on laws. And so we find it in Fortescue, whose learned annotator rejects the theories of Hobbes, Locke and Rousseau regarding the institution of government.

LEGAL ORIGIN AND NATURE OF CIVIL SOCIETIES OR STATES.

In the case of federal constitutions, such as that of the United States of America, there is indeed a fundamental law, the origin of which partakes of the nature of that of a treaty or contract; but this is not an original contract in the sense in which the term is used by Locke and Rousseau, nor a compact. It is a constitution of government,-a modification of civil or political society previously existing, by the union of several bodies politic in a form of constitution." And such federal fundamental laws are what the civilians call anomalous laws, which have no effect upon the general doctrines or jurisprudence of Public Law.

CHAPTER XIX.

OF THE SOVEREIGN POWER IN CIVIL SOCIETY OR STATES.

The Civil Power-Principle of Subordination-Authority of a Majority-Perfect and imperfect Societies-Necessity of the governing Power in Civil Societies-Analysis of the Civil Power by Grotius-The Sovereign Power-Doctrine of the Sovereignty of the People.

CIVIL Society may be described as a modification of natural society, whereby the sovereign power is created having authority to command,

9 Black. Com. b. 1, ch. 3, p. 211; Story, Comment. on the Constit. of the United States, vol. 2, book 3, ch. 3, § 341-344.

r Hallam, Constit. Hist. vol. 3, ch. 14, p. 349.

Fortesc. De Laudibus Legum Angliæ, by Amos, ch. 14, and note. Story, ubi sup. § 349.

And see

* Story, ubi sup. § 350, &c. We shall return to this subject in Chap. XXVII.

X

and from the will of which depends, in the last resort, all that regards the temporal happiness and welfare of society." And, as we have seen, the institution of civil society and political sovereignty is a natural result of the principles on which all human society is based. For the purpose and design of God in linking men together in the social state, to unite them by the spirit of the two primary laws, necessarily implies a subordination among them, or a subjection to authority whereby some are placed over others. That authority is called by Grotius the civil power, or the moral power of governing a state, when it exists in civil society. That this principle of subordination to authority is matter of Natural Law is shown by the reflection of Domat, that it is necessary in all conjunctions of several persons together which exist among men. Thus, in marriage, the man is the head of the wife, and by birth children are subjected to the authority of their parents; and when the increase of mankind required another regimen, God established chiefs or princes over many families. And in conjunctions of persons having equal legal rights, as members of some body, the majority expresses the will of the body, to which the individual members must submit. Savigny, in considering the constitution of judicial persons or corporate bodies, examines this subject. He says that the rule of law making the will of the majority that of the body in its corporate capacity, is founded on Natural Law. For to require unanimity would be to impede the acts and the will of the body corporate; and the rule is preserved in the Roman Law, and adopted by the Canon Law. Unanimity is not impossible in a deliberating assembly, and it is required for the verdict of an English jury, but it is so difficult to obtain, and subject to so many contingencies, that it would be an obstacle to the movements and the life of the assembly. And the principle of the power of a majority once admitted, the right of being acknowledged as the will of the whole body is naturally attributed to a simple majority, that is to say, half the votes, plus one. And every other proportion, such for instance as two-thirds, or six-sevenths, has a character of arbitrary or positive law. We see here, again, an example of the way in which a rule of natural law arises from an

Burlamaqui, Droit des Gens, vol. 4, p. 15, edit. Dupin.

* Grot. Droit de la Gens, liv. 1, ch. 3, § 6.

y Domat, Droit Publ. Preface.

L. 160, § 1, ff. De Reg. Jur.; 1. 19, ff. ad Municipalem, 30; Decretal. Tit. De his quæ fiunt a majore parte Capituli. And see Fæbeus, De Reg. Jur. Canon. p. 176, who explains the distinction between things affecting the rights of the individuals as such, and those which regard the corporate body. Commentary on rule 29 in Quinto Decretal. (De Reg. Jur.)