of preventing occasions for dispute; and the doctrine of checks and balances attempts to provide an automatic machinery which shall sound an alarm at encroachments by members of the governing class on others of the same class. Underlying all these ideas is the fundamental doctrine of revolution, that is, of the moral right of the governed to take arms and try to prove their power as a sovereign majority, if the impalpable restrictions on government are not observed.

This conception denies the sovereignty of those who exercise government, and puts it back on those who have the right, within legal forms, to create restrictions on sovereignty. If, therefore, we can discover who has the ultimate legal power to make and alter constitutions, we have found the ultimate depository of sovereignty. In England, such a power rests in the peers of the realm and the constituencies of the House of Commons. In France, it rests in the electors of the Chamber and the Senate, acting in a joint convention. In the United States, the ultimate sovereign is the body of persons who, acting through two thirds of the members voting in the two houses of Congress, and through majorities of members voting in the two houses of the legislatures of three fourths of the states, may amend the federal constitution.

94. Political sovereignty. Sidgwick locates sovereign power, either conscious or unconscious, in the mass of the people.1

I think we must admit that there is, therefore, a certain sense in which the mass of the people in any country may be said to be the ultimate depository of supreme political power. Still, to say without qualification that the people is everywhere sovereign would be altogether misleading; since the statement would ignore the fundamental distinction between power that is unconsciously possessed — and therefore cannot be exercised at will and power consciously possessed. An aggregate of men do not become conscious of their power as a body, until they become confident of mutual coöperation for the realization of common wishes; and this confidence is, under ordinary circumstances, only acquired gradually by the habit of acting in concert. Accordingly, when the governed are without the habit of acting in concert, they are, as a body, unconscious that they possess the power of refusing obedience to their government. Even the knowledge that, if an overwhelming majority agreed to refuse obedience, it could not be enforced, and that an overwhelming majority would be glad to disobey if each could rely on the coöperation of the others, would not necessarily give a consciousness of power to disobey with impunity since mutual communication sufficient to produce the requisite

1 By permission of The Macmillan Company.

mutual reliance may be wanting; and in its absence, each and all may be effectually restrained from disobedience by fear of the penalties it would entail. So far as the Government is, for this reason, able to count on the obedience of the mass of the people, in spite of their dislike to what is commanded, though we may still attribute power to the latter, we must add the fundamentally important qualification that it is an unconscious and unexercised power. . .'.

I hold that, in a modern constitutional State, political power that is not merely exercised at the discretion of a political superior,- and that must therefore be regarded as supreme or ultimate,— is usually distributed in a rather complex way among different bodies and individuals; though, as I have said, it is also important to bear in mind that from the mere form of government in any state we can only conjecture very incompletely the actual distribution of the power of producing political effects.

95. Ultimate political sovereignty. Ritchie makes an extreme statement of political sovereignty, including past influences and future tendencies as component parts of sovereign public opinion.

The ultimate political sovereignty is not the determinate number of persons now existing in the nation, but the opinions and feelings of these persons; and of these opinions and feelings the traditions of the past, the needs of the present, and the hopes of the future all form a part.

96. The legal sovereign. The theory that sovereignty lies in each state in the hands of those who may legally amend its constitution is clearly stated in the following :

As a state in the exercise of its sovereignty may have occasion from time to time to amend or even to revise entirely its constitution, so as to adapt its life to newer conditions, there must be in every state a person or body of persons recognized as having the legal right to perform such a function. This agency of the state voicing its will in the enunciation of its fundamental law, is the legal sovereign. The legal sovereign, then, in the exercise of its power decides the form of the organization of the state, assigns powers to the other departments of government, prohibits the exercise of some powers and designates the manner in which the several powers assigned must be exercised. It may even specify the manner in which it will exercise its own powers, but such specifications must be considered as constitutional guaranties, not as limitations on its activity. In other words, the legal sovereign voicing as it does the absolute sovereignty of the state cannot legally bind itself not to exercise any part of sovereignty. It may give a formal

pledge in the nature of a limitation of its powers, but the binding force is moral, not legal, for a legal sovereign unable to perform its sovereign function would be limited in its powers, and hence not the repository of the most fundamental of sovereign powers.

In exercising this great power the legal sovereign should represent the will of the nation, and, as a rule, will more or less fully voice the desires of the people as a whole. As, however, states are constantly changing the conditions that determine their development, a legal sovereign designed in one age to express the will of the body politic, may in a later age fail to represent correctly that will. In such a case if the legal sovereign of its own accord fails to modify its composition so as to suit newer conditions, a revolution will probably take place after a period of dissatisfaction and agitation. This is the so-called Right of Revolution, the right of a community which finds itself hindered in development by existing forms, to overthrow these and substitute others more in accordance with the will of the community. Such a right must of course be justified on moral grounds; legally speaking all revolutions are rebellions and in violation of law.

In old-fashioned monarchies the legal sovereignty will naturally be found vested absolutely in the king, or in the king and his council, under the theory that these truly represent the larger interests of the state. In such cases the king, or the king and his council, may alter at will the fundamental law of the land. The inertia of custom and the fear of revolution or assassination may deter the king from making unpopular alterations, but if any changes at all are legally to be made, he is the proper agency to decide on and to enunciate them. If in such a state a representative council or a legislature should develop, this body may gain the right to share in the exercise of this power, and the three bodies, king, council, and legislature would then form the legal sovereign, as in England. In a similar manner the powers of the legal sovereign may pass entirely from the head of the state to the lawmaking body, as in France, or to the lawmaking body and the electorate, as in Switzerland. If the state be completely democratic, the electorate alone would exercise that power. This stage has almost been reached in Switzerland, through the use of the initiative and the referendum, and in some of the commonwealths of the United States of America through the use of the constitutional convention. In a federative form of government, the federal lawmaking body, combined with the lawmaking bodies of the federated commonwealths, may constitute the legal sovereign, as in the national system of the United States.

In respect to legal sovereignties located in lawmaking bodies, as in Great Britain, France, and the United States, it might properly be

maintained that the electorate also should be considered as legally a part of the legal sovereign, so far as it has the right to determine by election the membership of the parliament or legislative body. This would certainly be true if the electorate had also the right of instruction and of recall. If, however, the lawmaking body, when elected, has full discretion in respect to its policy, irrespective of instructions from constituencies, it may be better, on the whole, to consider that body for all practical purposes as the legal sovereign.

In an absolute form of government the personal sovereign will also be the legal sovereign, but the double aspect of the sovereign under such conditions is clear. Similarly if a legislature happens to be also the legal sovereign, it is always possible to distinguish between the legislature as a constituent and as a legislative body. Likewise, in a democracy, the electorate is the legal sovereign only when it directly exercises the powers of the legal sovereign. In the national system of the United States of America, e.g., the electorate is not legally sovereign, for the constitution vests the power of amendment in the national congress and the legislatures of the commonwealths. The electorate may request these to pass amendments, but has no power to command them so to do. Theoretically, these lawmaking bodies might at their discretion change the republic into an empire or into a socialistic form of government, without consulting at all the wishes of the electorate. The same illustration might apply in the case of Great Britain. The legal sovereign is the king in parliament, and action taken by this body is legally final, irrespective of the wishes of the electorate.

97. Sovereignty as total lawmaking power. Considering the expression of the state's will as the manifestation of sovereign power, Willoughby locates sovereignty in the sum total of the organs that may legally express such will. 1

Understanding now by Sovereignty a power which is capable of exercise only through existing governmental agencies, it necessarily follows that this supreme power is exhibited whenever the will of the State is expressed. In fact, it is almost correct to say that the sovereign will is the State, that the State exists only as a supreme controlling will, and that its life is only displayed in the declaration of binding commands, the enforcement of which is left to mere executive agents. These executive agents, while acting as such, have no will of their own, and are but implements for the performance of that will which gives to them a political and legal authority.

1 Copyright, 1896, by The Macmillan Company.

This, then, locates the exercise of Sovereignty in the lawmaking bodies. By whomsoever, or whatsoever body, therefore, the will of the State is expressed, and law created, there we have Sovereignty exercised. If we distinguish between executive, judicial, and legislative departments of the State, it is in this last-named department that the exercise of Sovereignty rests. . . .

The only point that we must remember is that the term "legislative " must not be so narrowly construed as to limit its application to those bodies by which formal statutory enactments are made. In so far as the chief executive of the State has the ordinance power, he may express the sovereign will and therefore exercise Sovereignty. . . . Again, constitutional conventions, in so far as they have the direct power of creating constitutional law, exercise this sovereign power. Finally, in so far as courts are the organs of the State for the creation of law, they express the will of the State and hence exercise Sovereignty. In so far, however, as their work is merely interpretative of existing law, they of course do not exercise this power.

As we have already said, the electorate is to be distinguished from the People. There are instances in which this former body may act as an organ of the State for the exercise of its sovereignty. This happens whenever there exists a provision according to which law may be created by a referendum or other method of plebiscite. When so called upon for its vote, the electorate is to be considered as ad hoc a legislative body..

...

To repeat, then, in conclusion; all organs through which are expressed the volitions of the State, be they parliaments, courts, constitutional assemblies, or electorates, are to be considered as exercising sovereign power, and as constituting in the aggregate the depository in which the State's Sovereignty is located.

98. Divisibility of sovereignty. In the early history of the United States the theory prevailed that sovereignty was divided between the "States" and the Union. Expressions of this point of view follow: 1

U. S. Supreme Court:- The United States are sovereign as to all powers of government actually surrendered. Each state in the Union is sovereign as to all the powers reserved.

U. S. Supreme Court: - The several states retained all internal sovereignty and . . . Congress properly possessed the great rights of external sovereignty.

1 Quoted in Merriam, "American Political Theories," pp. 257-261.