TABLE I. Forma Imperii, or Staatsform: i.e. the form of the Sovereignty. * On this division, as expounded in Kant's text, Mr. Austin remarks:- The making of a law, and the execution of a law, are necessarily different processes. But how is it necessary that the two processes should be performed by different persons? The power of appointing representatives, is often called political liberty; i.e. a portion in the Sovereignty.-Kant. The passage in Kant's book to which Table II. refers, ends as follows: 'The sort or mode of government (Regierungsart) is beyond all comparison more important to a people than the form of the Sovereignty (Staatsform); although a great deal also depends on the greater or less adaptability of the latter to attain by gradual reforms to the character of a perfect Republic. To that end, however, the Representative System is absolutely indispensable; without it (be the form of the Sovereignty what it may) the government is despotic and arbitrary. None of the ancient so-called republics knew of this, and they therefore inevitably subsided into despotisms; the most endurable form of which is, the sovereign rule of one.'Kant, Entwurf,' p. 29. In a note, Kant refers here to the often quoted line of Pope, which he translates, 'die bestgeführte ist die beste.' If that,' says he, 'is equivalent to saying that the best administered is the best administered, Pope (to quote Swift's expression) only cracked a nut which rewarded him with a maggot. But if it means that the best administered, is also the best constituted government, it is utterly false, (grundfalsch); for examples of good government prove nothing in favour of the form. Who ever governed better than Titus or Marcus Aurelius? and yet the one left a Domitian, the other a Commodus, as his successor.'-S. A. * Democracy, or the government of all, is necessarily autocratical or despotic. -Kant. Legislative powers Sovereignty: Consequently, in no republican (or syncratical) government is the so-called sovereign, sovereign. It is merely co-sovereign with the active portion of the citizens. As Regent (when considered by itself) it is subject-minister of the joint sovereign.-Note by Mr. Austin. In the text, Kant says, Alle, die doch nicht alle sind:' referring obviously to the exceptions made in all schemes of universal suffrage.-S.A. * The share of the active citizens in the sovereignty is called political liberty. Kant. † See Krug, vol. iv. p. 36, and Pölitz, vol. i. p. 173 et seq. LECTURES ON JURISPRUDENCE. ANALYSIS OF PERVADING NOTIONS. LECTURE XII.29 ANALYSIS OF THE TERM RIGHT. I HAVE endeavoured in the preceding Lectures to accomplish LECT. XII the following objects: 1st, To determine the essentials of a Law (in the largest signification which can be given to the term properly): 2ndly, To distinguish the laws proper which are set by God to Man, and the laws proper and improper which are sanctioned or oblige morally, from the laws proper which are sanctioned or oblige legally, or are established directly or indirectly by sovereign authority. Having attempted to determine generally the nature of Law, and to mark the boundaries of the field which is occupied by the science of Jurisprudence, I shall now endeavour to unfold (as briefly as I can) the essential properties of Rights: meaning by Rights, legal rights, or rights which are creatures of Law, strictly or simply so called. and Moral Rights, or which are religiously There are, indeed, Rights which arise from other sources: Natural namely, from the laws of God or Nature, and from laws which are sanctioned morally. But the peculiarities of these Rights may be easily collected, by considering the peculiarities of merely the sources from which they flow. Accordingly, I shall not sanctioned pause to examine them in a direct or formal manner, or morally. although I shall advert to them occasionally in the course of the ensuing Lectures. At present, I dismiss them with the following remarks. 1st, Like the Obligations to which they correspond, natural and moral Rights (or rights which are 29 This lecture was marked xii. in the former edition, being the twelfth lecture in one of the courses as delivered by the author. I have thought it advisable for the purposes of reference to adhere to VOL. I. A A the same numbering. There is, however, |