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Page:Harvard Law Review Volume 2.djvu/88

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AMONG the theories of jurists, there is, perhaps, none which has been a battle-ground for so long a time, as that which relates to the limits of sovereign power. For two centuries and a half the writers who maintained that sovereignty is in its nature unlimited, and those who contended that man is, endowed with certain natural rights which the State cannot legally invade, waged against each other a continual war; the former, in Eng- land, being found among the partisans of monarchy, the latter, in the ranks of those who favored the popular cause. But now, just at the moment when democracy is carrying everything before it, and the advocates of the natural rights of man appear to have triumphed, there has come a sudden change of principle, and the victors, adopting the opinions of the vanquished, are almost uni- versally convinced that the authority of the sovereign, from its very nature, can be subject to no limitation or restraint.

This change of theory is far from accidental, and may be traced to two entirely distinct causes, of which one has acted with great force upon the mass of the community, while the other has produced an effect even more striking upon the minds of scholars. So long as the reins of government were in the hands of a king, it was natural that the advocates of popular rights should seek to restrain his power, but after the people had obtained control of the State, it was not to be expected that they would show the same respect for principles which fettered the exercise of their own authority. The ascendency of the popular party had, therefore, an inevitable tendency to upset those doctrines which were de- signed to limit the exercise of power by others. Now, it was dur- ing the period when democracy was beginning to prevail, that Bentham*s treatise on legislation,^ and Austin's work on jurispru- dence, attracted the serious attention of scholars ; the first of these writers proclaiming the greatest happiness of the greatest number

1 Bentham, as will be seen in the following pages, far from teaching the doctrine that the power of the sovereign is unlimited, distinctly repudiated it, and yet there can be no doubt that his principles, by undermining the old notion of natural rights, materially helped to establish that doctrine.