tionale is a special constitutional doctrine. It permits, indeed, the establishment and maintenance of a great variety of governments, its only requirement being that they and their several organs and officials shall be deemed to have only such legal powers of rulership as they may have obtained by way of delegation by the Nation, that is, by those constituent bodies that are assumed to speak for the Nation. The doctrine therefore renders constitutionally impossible all forms of government which are founded upon, or which involve, the recognition of a right of rulership inhering as a personal underived right, in particular persons or groups of individuals. The doctrine of the sovereignty of the State, upon the other hand, as developed in the present treatise, is one of pure political or juristic theory. It is wholly indifferent to, and, therefore, is compatible with, any form of government, whether autocratic or democratic. 16 In other words, the concepts of Nation (or People) and the State are not to be confused. The vesting of sovereignty in the Nation or people is, as has been said, a constitutional doctrine and not one of pure political theory.

Austin's Theory as to the Determinateness of the Situs of Sovereignty in the Body-Politic. As is well known, in his definitions of law and of the State Austin emphasized the idea that a law is a command that emanates from a

10 Malberg is, therefore, not quite correct when, contrasting the constitutional doctrine of the pure monarchy with that of Souveraineté Nationale, he says: "Dans le premier, l'État ne personnifie que lui même, la nation n'étant que l'un des facteurs dont la réunion a pour effet de former l'établissement public État; dans le second, la nation n'est pas seulement l'un des éléments qui concourent à constituer l'État, mais elle s'identifie avec lui et il ne personnifie qu'elle. Dans le premier système encore, l'État devient une personne par le fait qu'il a un organe propre, le monarque; dans le second, la personne État, étant identique avec la personne nation, existe par le fait que la nation elle-même se trouve organisée. Enfin et par suite de ses différences initiales, dans le premier système, le monarque a puissance sur la nation considérée comme élément subalterne de l'État; dans le second c'est, au contraire, la nation qui a puissance sur le monarque envisagé comme organe national." Op. cit., II, p. 189.

determinate source, and that, as a prerequisite to the existence of a State, there must exist a determinate individual or a determinate group of individuals who possess the sovereign right of declaring law, and who, in addition, are able to secure, if not the uniform, at the least the habitual, obedience to this law upon the part of the bulk of the community to which it is addressed.

Austin says: "If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and that society (including the superior) is a society political and independent."17 This determinate human superior, Austin elsewhere says, may be a single individual definitely marked out, or a body of individuals the members of which may be determined by some definite ascertainable quality or characteristic.

It is especially to be observed in this definition that Austin vests the sovereignty, not in the State, but in this determinate individual or body of individuals. There is no question as to this for he goes on to say: "It is only through an ellipsis that the society is termed independent. The part truly independent (independent, that is to say, of a determinate human superior) is not the society, but the sovereign portion of that society." And again he says: "An independent political society is divisible into two portions, namely, the portion of its members which is sovereign and superior, and the portion of its members which is merely subject . . . When the sovereign portion consists of a single member, the supreme government is properly termed a monarchy, or the sovereign is properly termed a monarch."

At this point the doctrines developed in the present treatise depart from those of Austin. Austin, it is clear, "Province of Jurisprudence Determined, chap. VI.

does not make that distinction between the State and its Government, between pure political theory and constitutional doctrine, which the author has continued to emphasize. It may be granted to Austin that a command or positive law must issue from a determinate source, but, in political theory, that determinate source is always the particular State that is under examination.

Legislative Power. Bearing in mind what has gone before, it is evident that the search for the determinate sovereign governmental organ of a State is an inquiry that has to be separately performed for each State, and the answer obtained from the special system of constitutional jurisprudence which such State possesses. This much, however, may be declared in general terms: that sovereignty being the omnicompetent legal will of the State, its operation is especially manifested when the policies of the State are declared. These policies are for the most part embodied in the laws of the State, but may also, as, for example, in international affairs, be decided upon or made known either in the form of treaties or by other executive declarations or action. In a very true sense, however, every act of every organ of government, if justified by existing constitutional and statute law, is an act of sovereignty. In a more special sense, however, the State's sovereignty is manifested in the enactment of the laws which determine what the various organs of government shall be legally competent to do. There is thus some force in the statement of Locke that, "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 parts, and every member of the society prescribing rules to their actions, and giving power of execution where they are transgressed, the legislative must needs be supreme, and all other powers in any

members of parts of the society derived from and subordinate to it." 18

It has already been pointed out that the electorate of a State is to be distinguished from the People or entire citizen body. There are instances in which the electorate acts as a legislative organ. This happens whenever there exists a constitutional provision or practice according to which law may be created by a referendum or other plebiscital method. When so called upon for its vote, the electorate is to be considered ad hoc a legislative body. Of course, in those cases where a vote of the people is had merely for the purpose of discovering what the public sentiment is upon a given proposal, and without the power of such a vote itself to give a legal validity or non-validity to the proposal, we do not have the electorate exercising the law-making power.

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.

This, then, locates the exercise of Sovereignty in the law-making bodies. By whomsoever, or whatsoever body, therefore, the will of the State is expressed, and the 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 1 Two Treatises of Government, bk. II, chap. 13.

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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. Insofar as the chief executive of the State has the ordinance power, he may express the sovereign will and therefore exercise Sovereignty. As we know, this power was, in former times, very extensive in England, and still persists to a considerable degree in all modern States. The entire constitutional history of England is in fact but little more than a record of the manner in which this royal power of law-making has been curtailed, and the legislative power of Parliament taken its place. Again, constitutional conventions, insofar as they have the direct power of creating constitutional law, exercise this sovereign power. Finally, insofar as courts are the organs of the State for the creation of law, they express the will of the State and hence exercise Sovereignty.

It may be said that courts are able to legislate only by the acquiescence of the legislative body which may negative by statute the principles which they have declared; and hence that they act but as agents of the legislature proper. In the same way, it may also be said that, in many States, the ordinary legislature exercises its powers only by right of constitutional law, and therefore that it, in turn, but voices the will of those who establish this fundamental law. This is certainly true, and therefore, in any given State, it may be said, in one sense, that that organ possesses the final sovereign power which creates those laws that organize the Government, and distribute powers among its several governmental agents. In a measure we have already discussed this point in our consideration of the nature of constitutional provisions as compared with that of other forms of law. In a country like England, such a supreme body is the Parliament, but