nominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature."-Ibid. 125. Thus far it appears, that absolute rights are not positive rights conferred by a legislature, but a mere absence of legal restraint, or natural liberty. Afterwards, he lays it down, that "the absolute rights of every Englishman, taken in a political and extensive sense, are usually called their liberties" and proceeds to explain how these "rights and liberties" exist by virtue of certain acts of Parliament.-Ibid. 127. Here, then, liberties are positive rights conferred by the legislature, having no connexion with natural liberty. Finally he says, that “the rights themselves, thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other than either that residuum of natural liberty which is not required by the laws of society to be sacrificed to public convenience, or else those civil privileges which society hath engaged to provide, in lieu of the natural liberties so given up by individuals."-Ibid. 129. At length, we find that these "absolute rights" may be either the immunity from certain legal duties, or the possession of certain legal rights, or perhaps both at the same time. It is, perhaps, difficult to conceive greater confusion and obscurity of thought, than is displayed in this laboured discussion.' p. 204.

The notion which would make political or civil liberty consist in that portion of natural liberty which human laws have spared, is alike fallacious and pernicious. It would, if correct, justify Paine's notion, that all government is a necessary evil. Political liberty consists in the possession of those legal rights which are created by law, and secured by government. Law, therefore, instead of being an abridgement of liberty, is the parent of it. No man is free, who is not protected against wrongs; and that protection is afforded by law. To have the full benefit of frank law, is the very definition of civil freedom. In the savage state of natural liberty, might is the only acknowledged right. In such a state of things, the strongest alone can be said to possess any rights, since they alone can protect them. The weak are not free, because unprotected: they possess no rights; for the absence of all restraint is to them the negation of all rights, being the exposure to all wrongs. Hence, liberty is not only, as Sir James Mackintosh remarks, the object of all government', but it is the creature of government. Men, remarks the learned Author of the Discourse on the Law of Nature and Nations, are more free 'under every government, even the most imperfect, than they 'would be, if it were possible for them to exist without any go'vernment: they are more secure from wrong, more undisturbed in the exercise of their natural powers, and therefore more free, than if they were altogether unprotected against injury from ' each other. But, while natural liberty, or the free exercise of our natural powers, is secured by government, which protects

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against all but itself, civil liberty may more properly be said to be derived from law, which is the protection against arbitrary rule, against the abuses of government, and generally partakes of the character of a concession to the governed. What are our laws, but the title-deeds of our liberties, obtained by gradual concessions, and devised as a remedy against specific wrongs?

The idea of natural liberty in a social state, as derived from an imaginary social compact, is not merely a fiction,--the supposition of a thing which never had any existence; but, as explained by the advocates of the theory, involves a contradiction. This theory teaches, that mankind, when in the state of nature, made a compact by which the right of self-government was surrendered by the whole community on condition of being well governed. But this very compact supposes a state of civil society, and the pre-existence of social rights, which are never found existing in savage life. Blackstone, however, contends, that such an original contract, though never formally expressed, must be understood and implied in the very act of associating together. In the language of the English law, implication has a meaning nearly equivalent with fiction. Thus, in many cases, a contract is implied, where no contract was made; it being thereby meant, that the legal consequences are the same as if such contract had been really made, and that their existence may be assumed in argument without proof. But, remarks Mr. Lewis,

It is evident, that neither on the common nor on the legal explanation of implication, can the assumption of the social contract be supported. It cannot be inferred from the existence of government, or all must admit that government may exist without a previous convention. Nor can it be considered as a legal fiction; for a legal fiction is a supposition avowedly false, but treated as if it were true, for the imagined convenience of administering the law. A legal fiction without the sanction of law, is a mere absurdity; and therefore it cannot be pretended that the social compact, which serves as the foundation of all law, derives its own force from the existence of law.'

pp. 211, 212.

Yet, the popular notions respecting the natural liberty and equality of mankind rest upon this baseless political theory; although not unfrequently entertained by persons ignorant of the 'polluted source to which these expressions may be traced.'

But, while we agree with our Author in his general definition of legal rights as conferred by law, and as implying correlative social duties in others, (which are the only species of rights that political or juridical science is concerned with,) we are not prepared to admit that there is no such thing as natural rights, anterior to government, independent of human laws and institutions, because springing out of the original natural relations. Mr. Lewis remarks, that Filmer's argument, that men are born in subjection

to their parents, and, being under their authority, are not by nature free, is founded on the customary confusion of law and morality; for, though a child, in a savage state, owes a moral 'duty to his parents, he is bound to them by no legal obligation."' But, if he owes a moral duty to his parents, they must possess a correlative moral right, because rights and duties imply each other. And this right must be regarded as an actual and inherent right, recognised, but not created by law, antecedent to all social institutions, and of which no man can be justly deprived. Granting that there can be no political rights, no legal obligations, anterior to human laws and institutions, morality, as well as law, has its rights, which are neither metaphysical nor supposititious, nor dormant they belong not to a state of nature,' but to nature in every state, and are never surrendered. The source of these moral rights and obligations is the law of God and the divine constitution of our nature.

Another term respecting which great confusion of ideas has prevailed, is, sovereign and sovereignty. By many writers, sovereignty is confounded with royalty: by others, the word is used in a vague and half metaphorical sense, as denoting the will of the whole community, or the moral influence of the nation, or a part of it, upon the acts of the sovereign. In its proper sense,' says Mr. Lewis, the word sovereignty means the supreme power of the person or persons who are sovereign in the state, and are legally uncontrolled both from within and with'out. This definition is not very happy. That sovereignty means the power of the sovereign, is obvious, but this throws little light upon the precise import of either term. The truth is, however, that sovereignty, that is irresponsible and uncontrolled power, is an attribute rarely attaching, in fact, to those who are styled sovereign. Absolute sovereignty, and absolute supremacy, can be predicated of God alone. The King of England is usually styled sovereign, and such is his legal and constitutional 'title, because he is in all things supreme.'

'Nevertheless,' Mr. Lewis remarks, according to the scientific definition of sovereignty, the King of England cannot be considered as sovereign, i. e. as possessing the entire sovereign power; as he is not able to make laws by his sole authority, and it is necessary that the advice and consent of two bodies, irresponsible in a corporate capacity for such advice and consent, should previously be offered and obtained. Hence it is that the King of England is termed a limited monarch, and the government of England is called a limited monarchy; because the power of the King in enacting laws, is limited by the necessity of obtaining the consent of two Houses of Parliament to their enactment. And thus the King of England cannot properly be said to possess the entire sovereign power, because all sovereign power is unlimited and uncontrolled; and a limited sovereign is a contradiction in terms. The

difference between an absolute and a limited monarchy is, that in one the entire legislative sovereignty belongs to the prince, in the other it is shared with several. It is indeed generally admitted, that all sovereign power is uncontrolled; and it is expressly laid down by Blackstone, that "the sovereignty of the British constitution is lodged in the three branches of the Parliament; and in another place, he calls the King "one of the constituent parts of the sovereign legislative power:" so that, although, according to our legal language and the written doctrines of our constitution, the King is our sovereign lord, yet in a general sense he cannot properly be called a sovereign, or be said to possess the entire sovereign power: sovereignty, in this peculiar acceptation, being only equivalent to preeminence, or supremacy, and not signifying unlimited and absolute authority.' pp. 50-52.

According to the theory of the constitution, the King has no power of enacting laws. The legislative sovereignty, that is, the uncontrollable power of making, repealing, or expounding laws, is substantially vested in the Parliament; and the King shares in that sovereignty, according to the theory, only by his veto; according to fact, only by the influence of the Crown exerted through his ministers. It is only a part therefore, and that the least 'important part,' of the sovereign power, that is possessed by the King. With regard to the administration of the laws and the declaration of peace and war, he is sovereign. Blackstone lays it down, that the whole executive power of the English nation is vested in the King. This may be the constitutional theory; but even the executive sovereignty is, in fact, shared with the Parliament, by whom, through the responsibility of those who administer the government, the royal prerogative is effectively controlled. It is true, that the officers intrusted with the administration of the laws or of the executive government, being responsible for their acts, cannot be said to have any share of sovereignty vested in them, because sovereign power is irresponsible. Still, the responsibility of ministers, not to the Crown merely, but to Parliament, proves that the executive, not less than the legislative sovereignty is, in practice, shared by the Crown with the Parliament. The personal irresponsibility of the King, intended to secure the inviolability of his prerogatives, does not extend to his acts, which are under constitutional control.

Mr. Lewis correctly remarks, 'that it is the royal, not the sovereign 'power that is limited in a limited monarchy.' There may be a divided sovereignty, or rather a joint sovereignty; but a limited 'sovereign is a contradiction in terms.' In every government, there is a supreme authority, in which the jura summi imperii reside, a power from which the constitution has provided no appeal. This unlimited, uncontrolled power certainly does not reside in the King of England, who, though supreme, is not uncontrolled; though invested with the royal prerogatives, is not

absolutely or strictly a monarch *. The limitation of his prerogatives extends to his executive as well as his legislative functions. Even the judicial sovereignty, which may with more strict propriety be said to reside in the Crown, has been virtually surrendered, since the Judges have been rendered independent of the royal pleasure, and consequently irresponsible. Or may we not say that, in this country, the Crown itself, with its sovereign prerogatives, is put in commission?-that while the majesty of the State is lodged in the hands of a single person, who is the fountain of all honours and dignities, the rights of sovereignty are divided among the respective Commissions to whom the judicial, military, legislative, and administrative powers have respectively been assigned by the theory or the practice of the Constitution? All the powers of the Crown still exist, but they are no longer vested in the monarch. Of the monarchy, if we may be allowed the expression, the Supreme magistrate is but the co-trustee; sovereign in his reserved prerogatives, but not in his authority; the head, but not the possessor of the actual sovereignty.

In these as well as in some other respects, the British Government, though including monarchical institutions, resembles, Mr. Lewis remarks, that of the United States of America, barring the differences caused by the nature of a federal union,' far more nearly than the monarchies of Russia, Austria, and Spain.

If, at the Revolution, the name (title) of the King of England, as well as his power, had been changed, but he had nevertheless exercised precisely the same influence in the Constitution as the Crown has exercised since that time, the Government would have been called republican, instead of monarchical; although the only difference would have been, in the name of the first person in the State.' p. 68.

The English Government is, scientifically considered, though not in popular language, a commonwealth or republic: it is so, inasmuch as the sovereign power is divided, and not in the hands of a single person. A limited monarchy must, in the very nature of things, be a republic, and, in the spirit of the government, in effect an aristocrasy.

The phrase, sovereignty of the people, is one to which, our Author remarks, it is not very easy to give any determinate meaning, but, as generally employed, it seems intended to express "the moral control and influence exercised by the community at 'large upon the acts of the legislature.' Sometimes, however,

It is perhaps unfortunate,' Mr. Lewis remarks, that usage has sanctioned the extension of the term monarchy to all states in which a King is chief; in other words, has identified monarchy with royalty.'

p. 66.