people. This "supreme power that remains still in the people" may not manifest itself conspicuously, except in the case of a successful revolution; but this is the real ultimate political sovereign in an independent political society. In recognising this, Locke is in entire agreement with his follower Rousseau, whose "inalienable sovereignty of the people" is identical with Locke's "supreme power that remains still in the people." And it is a conception that continues perfectly valid, though we brush away the idea of "natural rights," as being anything more than (1), the might or power, moral and physical, residing in any body of persons, or (2) whatever, in the private opinion of any one using the phrase, a well regulated society ought to secure to its individual members. It is the fashion in England to laud Locke and revile Rousseau. Rousseau is a clear writer, and Locke is not. Rousseau wrote before a violent revolution, and Locke published his book after a very quiet one. These are the main differences between them.

It would be convenient to name these "three sovereigns" in such a way as to make the distinction fit other forms of government than the British Constitution. I propose therefore to distinguish them as (1) the nominal (2) the legal (3) the ultimate political sovereigns. By (1) the nominal sovereign, I mean that person or that institution in whose name executive acts are performed and the political society is represented on its external side (e.g., by ambassadors). In Great Britain this is, at present, “Queen Victoria"; in France it is "The French Republic"; in a federal government it is, in federal matters, e.g., "The United States of America," in matters of State sovereignty,

"The Commonwealth of Massachussetts," etc. By (2) the legal sovereign, I mean, “as aforesaid," the sovereign for the lawyer quâ lawyer. In Great Britain this is "as aforesaid" what lawyers mean by Parliament. (To the historian the king is not a part of Parliament). In the United States of America (I speak under correction of American publicists) this is not Congress (as some Englishmen are apt to think), nor the aggregate body of persons empowered to amend the Constitution (as Austin thinks), but the written Constitution itself, which, as it provides for the method of its own amendment, and even limits the extent to which it can be amended (Art. V.), is legally supreme over the determinate persons whom it entrusts with the power of amending it. Thus the legal sovereign is not necessarily everywhere a determinate body of persons any more than the nominal sovereign; and (3) the ultimate political sovereign, i.e., public opinion or the "general will," never can be a determinate body of persons. It works through persons, of course, but it is something vaguer and more powerful than they.

On

The attempt to find sovereignty always and everywhere in determinate persons is the great error of Austin. the other hand, the Austinians have done good service by insisting on the legal irresponsibility of the legal sovereign. Legal irresponsibility makes moral and political responsibility the more conspicuous. If we know definitely what the law is, we can more easily make up our minds whether it is politically a good law or not. The ultimate responsibility of the ultimate political sovereign is a question for the philosophy of history; in other words, one may

say it is a matter of "natural selection." The penalty for a continued mistaken exercise of the supreme power of public opinion is the penalty of death for the nation.

This whole subject of sovereignty I have attempted to treat more fully in an article which appears in the Annals of the American Academy of Political and Social Science, Vol. I., No. 3.

NOTE C.

UTILITARIANISM.

THROUGHOUT the foregoing Essays I have insisted that the question of the proper limits of State action must be determined, not by an à priori theory of "natural rights," nor by any respect for a supposed "sphere of individual freedom," with which we can say beforehand that the State has nothing whatever to do, nor by any quasi scientific dogma about society being a natural growth with which it is foolish to meddle; but simply and entirely by "Utilitarian" considerations. This solution might indeed seem to plunge us into ethical controversies, and that might appear a bad way out of political difficulties. Ultimately, it is true, our ethical theories and our political practice must harmonise. But we may avoid the details of philosophical disputes. I have already indicated in what sense Utilitarianism is to be accepted as the determining principle for State action (See especially pages 107, 143). J. S. Mill, in his Utilitarianism, has practically deserted the Hedonism of Bentham by distinguishing pleasures according to kind; for this implies that some other criterion than that of pleasure determines moral quality. Here, as in so many other respects, Mill makes the beginning of a transition (Cp. p. 83 above). A theory of Utilitarianism based on Hedon

ism raises many questions which it cannot answer. Is it true that all sentient beings do always pursue pleasure? Is not "Happiness" something different from pleasuresomething more, even, than pleasure and the absence of pain ? How can we jump from "Every sentient being naturally pursues his own pleasure" (supposing it were true) to "Every one ought to seek the happiness of others"? I may assume that the negative criticism of Hedonism has done its work sufficiently; and it is superfluous to kill the dead. The critic does more important service when he points out that the cause of Bentham's errors lies in his abstract and mechanical view of feelings as if "lots of pleasures" could actually be distributed among the members of a community, like the dividends of a joint-stock company; and in his abstract and mechanical view of society, as if it were simply an aggregate of absolutely uniform individuals. A more adequate theory of the relation between the individual and society has been reached both by those (like T. H. Green), who, starting from the metaphysical conception of the "self," see that the self can only be realised in a society of other "selves," and by those (like Mr. Leslie Stephen) who apply the conception of Evolution to morality. (I can hardly take Mr. Spencer as an illustration, because, as already shown in other matters, his Evolutionism is half-hearted and vitiated by individualism). This "convergence of results," on the part of those who have approached the subject from dif ferent sides, is one of the most hopeful signs in the present revived interest in Ethics. (See an interesting passage in Mr. S. Alexander's Moral Order and Progress, pp. 6, 7).