people putting themselves in a revolutionary attitude toward their government, that is, by attempting the enforcement of their demands in ways other than those provided by law, they are placed outside of the State so far as such acts are concerned. However proper their conduct from a moral standpoint, from a legal standpoint they are then acting not as a body politic, but as a mob. They have, in fact, expressly repudiated State agencies. This, then, cannot be an act of Sovereignty, for Sovereignty, as expressly defined and conceded by all, is of the State and is possessed by a political community, and not by an uncivic aggregate of men. Until a people become politically organized there is no Sovereignty.10

10 Thus says Bluntschli in his Staatswörterbuch: "Es giebt keine Souveränetät der Gesellschaft. Keine Souveränetät vor oder über dem Staate. Die Souveränetät als ein staatlicher zunächst ein staatrechtlicher Begriff ist durch die Existenz und durch die Verfassung des Staates bedingt."

To the same effect says Cooley (Constitutional Limitations, 3d ed., p. 598): "The voice of the people in their sovereign capacity can only be of legal force when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the constitution, and if by any portion of the people, however large, an attempt should be made to interfere with the regular working of the agencies of government at any other time, or on any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary."

According to Judge Jameson, sovereignty resides in a society only as a body politic; "in the corporate unit resulting from the organization of many into one, and not in the individuals constituting such unit, nor in any number of them as such, nor even in all of them, except as organized into a body politic and acting as such." (The Constitutional Convention, p. 21.) However, though assuming this correct position, he proceeds to declare that Sovereignty may be exercised in an extra-governmental or revolutionary manner. Its characteristic as a legal power is thus explicitly abandoned. "Sovereignty," says he, "manifests itself in two ways: first, indirectly through individuals acting as agents or representatives of the sovereign, and constituting the civil government; and, secondly, directly by organic movements of the political society itself, without the ministry of agents; the movements referred to exhibiting themselves either in those social agitations, of which the resultant is known as public opinion, that vis a tergo in all free commonwealths, by which the machinery of government is put and kept in orderly motion; or in manifestations of original power by which political or social changes are achieved irregularly, under the operation of forces wielded by the body politic itself immediately." (Idem, p. 23 Citation is made of Lieber's Political Ethics, vol. I, p. 256.) But what the tests are by which "organic movements" of society are to be dis

If it be necessary to make this point still more conclusive, the circumstance may be pointed out that in all cases the actions of States are, as a matter of fact, largely determined and limited by the claims of other States, and thus their independence is practically governed by influences identical in character with those exercised by the public opinion of their own citizens. The legal, or rather non-legal, nature of both are the same. No greater validity can be predicated of the one than of the other, yet even Lieber and Jameson would not hold that Sovereignty rests, not with the individual States, but in a Community of States.

"Political" Sovereignty. Professor Ritchie, in an article upon this subject11 distinguishes between this power of the people exercised by public opinion, which he terms "the ultimate political Sovereignty," and the highest political power of the State as exercised through its legally established organs, which he designates as "legal Sovereignty." It is undoubtedly correct thus to make this distinction, but, to the writer, it seems unfortunate that the same term, "Sovereignty," should be applied to two forces so radically different, even though distinguishing adjectives be prefixed. Is it not better to term such extra-legal force simply "Public Opinion" or "General Will," and to limit the word "Sovereignty" to its purely legal application?

In thus distinguishing between Sovereignty and General Will or Public Opinion, between legal absolutism tinguished; how Sovereignty, as necessarily inhering in a social body only as a political body, and exercised as such, can likewise be discovered in mere opinion or in "irregular" acts for the achievement of social as well as political changes; what valuable distinction there is between revolutionary and legal conduct a distinction emphasized throughout the work; these are questions that Judge Jameson does not attempt to answer. (Cf. his article entitled "National Sovereignty," in the Pol. Sci. Quar., vol. V, p. 193.)

11

"On the Conception of Sovereignty," Annals of the Amer. Acad. of Pol. and Soc. Science, January, 1891.

of the State and its powers as absolutely limited by political exigencies, we are, in fact, but stating a result that correlates with the position which we shall assume in regard to the relation of custom to law.12 That is to say, we shall deny to the people a capacity for legislation except through State organs. It is the essential office of representative or public government to make an approximately correct formulation of Public Opinion, and to secure political action in conformity thereto,13 but this is not to place the exercise of Sovereignty in the unorganized community.

In conclusion, then, of this point, it may be said that, though legally absolute, Sovereignty is to be considered in reference to the institutions, the character of the people governed, and other objective conditions. While force is and always must be an incident of Sovereignty, the highest ideal of statesmanship is to render the actual exercise of such force as seldom necessary as possible, and the extent to which this aim is attained will depend largely upon the degree in which State action corresponds with the desires of Public Opinion or the General Will. As T. H. Green says, "If once the coercive power which must always be an incident of Sovereignty becomes the characteristic thing about it in its relation to the people governed, this must indicate one of two things; either that the general interest in the maintenance of equal rights has lost its hold upon the people, or that the Sovereignty no longer adequately fulfils the function of maintaining such rights, and thus has lost the support derived from the general sense of interest in supporting it

12 See chapter, "The Nature of Positive Law."

"See the remarks of Dicey (Law of the Constitution, pp. 73-76), according to which the function of representative government is to produce a coincidence between what he terms the "external limits" to Sovereignty, arising from the possibility of resistance on the part of the people, and the "internal limits," depending upon the wishes of those who wield the sovereign power.

It is certain that when the idea of coercive force is that predominantly associated with the law-imposing or law-enforcing power, either a disruption of the State or a change in the sources of Sovereignty must sooner or later take place."14

Souveraineté Nationale. A constitutional doctrine superficially resembling and often confused with that of "popular sovereignty" is that known as "Souveraineté Nationale," which the French, since the time of the Revolution, have, except for a single exception-the Charter of 1814-adopted as the fundamental principle of their constitutional jurisprudence. Article 3 of the Declaration of the Rights of Man and the Citizen of 1789 declared that "all sovereignty resides essentially in the Nation. No body, no individual may exercise any authority which has not expressly emanated from it.” The Constitution of 1791 declared that "The sovereignty is one, indivisible, inalienable and imprescriptible. It belongs to the Nation." A similar declaration occurred in the Constitution of the Year III. It was impliedly affirmed by plebiscites under the Constitution of the Year VIII, and the Empire. It was again explicitly declared in the Constitutions of 1848 and 1852, in the Reso-. lution of February 17, 1871, and in the Preamble of the Constitutional Law of August 31, 1871.

This principle, as Malberg so well shows in his analysis of it15 is best interpreted in the light of the historical conditions under which it was first enunciated, and, as thus interpreted, is shown to have the negative purpose of denying, once for all, the fundamental constitutional principle of the former French Monarchy that all con

14

Green, Philosophical Works, vol. II, p. 410. To many persons it will seem that these remarks of Green have a pertinency to present conditions in the United States with reference to the enforcement of the Eighteenth Amendment to the Federal Constitution.

15

Contribution à la Théorie Générale de l'État, vol. II, pp. 167-187.

stitutional power found its source in the King, and that he had an inherent divine or patrimonial right of rulership. As opposed to this royal doctrine, the doctrine of Souveraineté Nationale asserts that no person has such a personal or inherent right to exercise political power. Such a right can only be a delegated or constitutional one -one that has been created and sanctioned by the French Nation.

This constitutional premise that the ultimate constituent power is vested in the Nation has meant that sovereignty, as a legal concept, resides, not distributively in each of the individuals that compose the Nation, but in the citizen body as an individual and indivisible whole. In the Constitution of 1791 sovereignty is expressly declared to be one and indivisible. It is thus clear that, from the beginning, the doctrine was essentially different from the popular sovereignty of Rousseau. Indeed, the first constitution, that of 1791, made no attempt to provide a legislative body the members of which would be elected by a direct and universal suffrage. And later constitutions, without abandoning the doctrine of Souveraineté Nationale, limited the suffrage to holders of landed property, and, in the Charter of 1830, established even a monarchy-of course a constitutionally limited

one.

In result, then, according to this doctrine, the Nation is declared to have that exclusive right to exercise the sovereign or constitutional powers, which, prior to 1789, had been claimed by the King.

It might at first be thought that this investment of sovereignty in the Nation, conceived of as an indivisible political whole or corporate unit, amounts to practically the same thing as the ascription of sovereignty to the State, as assumed in the present treatise. The two doctrines are not, however, the same. Souveraineté Na