NOTE B.

THE CONCEPTION OF SOVEREIGNTY.

THERE is a passage in Locke's Treatise of Civil Government, Book II., ch. xiii., which seems to me to suggest a more satisfactory theory of Sovereignty than is to be found elsewhere :

"Though in a constituted commonwealth, standing upon its own basis, and acting according to its own nature, at is, acting for the preservation of the community, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them; for all power given with trust for the attaining an end being limited by that end, whenever that end is manifestly neglected or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject; for no man or society of men, having a power to deliver up their preservation, or consequently the means of it to the absolute will and arbitrary dominion of another, whenever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve what they have not a power to part with; and to rid themselves of those who invade this fundamental, sacred and unalterable law of self-preservation for which they entered into society; and thus M

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the community may be said in this respect to be always power, but not as considered under any form of govern this power of the people can never take place till the g dissolved.

In all cases whilst the government subsists, the supreme power; for what can give laws to anoth superior to him, and since the legislative is no oth the society but by the right it has to make laws f for every member of the society, prescribing rule giving power of execution where they are trans must needs be the supreme, and all other po parts of the society derived from and subordi

In some commonwealths where the legisl and the executive is vested in a single p the legislative, there that single person also be called supreme, not that he power, which is that of law-making supreme execution from whom all several subordinate powers, or having also no legislative supe made without his consent subject him to the other pa

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the community may be said in this respect to be always the supreme power, but not as considered under any form of government, because this power of the people can never take place till the government be dissolved.

In all cases whilst the government subsists, the legislative is the supreme power; for what can give laws to another must needs be superior to him, and since the legislative is no otherwise legislative of the society but by the right it has to make laws for all the parts and for every member of the society, prescribing rules to their actions, and giving power of execution where they are transgressed, the legislative must needs be the supreme, and all other powers in any members or parts of the society derived from and subordinate to it.

In some commonwealths where the legislative is not always in being, and the executive is vested in a single person, who has also a share in the legislative, there that single person in a very tolerable sense may also be called supreme, not that he has in himself all the supreme power, which is that of law-making, but because he has in him the supreme execution from whom all inferior magistrates derive all their several subordinate powers, or at least the greatest part of them; having also no legislative superior to him, there being no law to be made without his consent which cannot be expected should ever subject him to the other part of the legislative, he is properly enough in this sense supreme. But yet it is to be observed, that though oaths of allegiance and fealty are taken to him, it is not to him as supreme legislator, but as supreme executor of the law, made by a joint power of him with others, allegiance being nothing but obedience according to law, which when he violates, he has no right to obedience, nor can claim it otherwise than as the public person vested with the power of the law, and so is to be considered as the image, phantom, or representative of the commonwealth, acted by the will of the society, declared in its laws; and thus he has no will, no power but that of the law. But when he quits this representation, this public will, and acts by his own private will, he degrades himself, and is but a single private person without power, and without will that has any right to obedience; the members owing no obedience but to the public will of the society."

In this passage Locke is obviously thinking of the English Constitution as he interpreted it, and wished it to

be, and as the Revolution of 1688 practically made it. He distinguishes three senses in which we may speak of the sovereign or "supreme power" in the independent political society to which we belong.

(1) There is, first of all, what he mentions last, the sovereign power ascribed to the constitutional monarch whom we call "our most gracious sovereign," etc. (2) There is the supreme law-making body in the commonwealth, that body behind which the lawyer quâ lawyer does not go. This is the sovereign in the sense of Austin's apologists at the present day (e.g., Mr. F. Harrison, Art. on "The English School of Jurisprudence" in Fortnightly Review, Vol. xxx., 1878). But Austin himself goes behind the supreme law making body to the persons who appoint a portion of it. Sir G. C. Lewis more cautiously abides by the lawyer's view of the constitution, according to which sovereignty resides in the Parliament (i.e., according to the lawyer's, as distinct from the historian's, use of that term, in King, Lords, and the House of Commons). For the lawyer quâ lawyer a law is "good law," though it were made by a parliament which had entirely lost the confidence of the electorate, and was legislating in direct defiance of the express understanding on which the majority of the elected portion of it had been returned. If Austin's account of sovereignty were an account of the legal (I mean the lawyer's) sovereign, the Septennial Act would be bad law, because it was passed by a House of Commons elected under the Triennial Act. (3) Locke recognises that behind the legislature there is, not merely the electorate, but the whole mass of public opinion and the whole physical force of the