in those countries where government rests upon written constitutions, it is the organs that have the legal right to modify the terms of such instruments.

By some jurists it is asserted that courts create law not merely by reason of the fact that they establish and apply rules that have previously had no legal-or even customary-existence, but because in them lies the authority to determine the meaning to be given to the laws as enacted by the formal legislative organs of the government. Thus Gray, after defining the law of a State as "composed of the rules which the courts, that is the judicial organs of that body, lay down for the determination of legal rights and duties," 19 in a later section 20 says:

"The true view, as I submit, is that the Law is what the judges declare; that statutes, precedents, the opinions of experts, customs, and morality are the sources of the Law; that back of everything lie the opinions of the ruling spirits of the community; who have the power to close any of the sources; but that so long as they do not interfere, the judges, in establishing Law, have recourse to these sources."

Earlier in his volume, Professor Gray had made his position upon this point still more emphatic in the following words: "It has been sometimes said that the Law is composed of two parts,-legislative law and judgemade law, but, in truth, all law is judge-made law. The shape in which a statute is imposed on the community as a guide for conduct is that statute as interpreted by the courts. The courts put life into the dead words of the statute." 21

It cannot be denied that there is considerable force in

21

Idem, sec. 602.

Op. cit., sec. 276. Professor Gray quotes with approval the words of Bishop Hoadly: "Nay, whoever hath an absolute authority to interpret

the foregoing views; and to the extent that it is accepted it increases the part played by the courts as the legislative or will-expressing organs of the State. But so long as the courts, in fact, make no claim of right and in fact exercise no right to construe statutes in a wholly arbitrary manner, according to their own opinions as to the justice or expediency of the rules of conduct embodied in the enactments of the legislature, but limit their function to the interpretation or construction of the language of these statutes, the doctrine which denies a real law-making function to the legislature seems a forced one. In any case, however, the will that is declared and enforced is that of the Sovereign State.

Austin's Error. It might have been thought that Austin, in his search for the determinate superior in a given politically organized society, would have been satisfied when he had found the supreme law-making organ of government. But this he was not content to do, and, by continuing his search, overstepped the bounds of the jurisprudence for the determination of the limits of which his lectures were denoted, and wandered confusedly in the realms of political or social forces.

Thus, Austin located sovereignty in Great Britain in the Kings, Lords, and Commons. But by Commons he was not content to mean the lower branch of Parliament, but designated thereby the electors of the lower house. "Speaking accurately," he says, "the members of the commons' house are merely trustees for the body by which they are elected and appointed; and consequently the Sovereignty always resides in the Kings and the peers, with the electoral body of the commons." 22 Here, as any written or spoken laws, it is He who is truly the law-giver, to all intents and purposes, and not the person who first wrote and spoke them."

"The Province of Jurisprudence Determined, ed. 1861, p. 201.

Professor Ritchie has pointed out, he no longer speaks as a lawyer. "For a lawyer qua lawyer a law is good law though it were passed by a Parliament which had abolished the Septennial Act and had gone on sitting as long as the Long Parliament, quite as much as if the law were passed by a newly summoned Parliament of the elected part of which, an overwhelming majority, had been returned expressly pledged to vote for this very law. With the wishes or feelings of the electors the lawyer as lawyer has nothing whatever to do, however much they may affect him as a politician or as a reasonable man." 23 To the same effect is the dictum of Professor Dicey, that nothing is more certain than that no English judge ever conceded, or under the present constitution can concede that Parliament is in any legal sense a trustee for the electors: a dictum that is conclusively verified by the power of parliament, several times exercised, to lengthen its own existence without any reference to the voters by whom its members had been elected for a shorter period.24

23

Annals of the Am. Acad. of Pol. and Soc. Science, January, 1891, p. 392. "Law of the Constitution, 4th ed., pp. 69-71. We may profitably quote the following paragraphs as not only showing this point, but as illustrating the distinction that we have emphasized between Sovereignty as a purely legal conception, and as the ultimate conditioning force of public opinion: "It should, however, be carefully noted," says Dicey, "that the term 'Sovereignty,' as long as it is accurately employed in the sense in which Austin sometimes uses it, is a merely legal conception, and means simply the power of law-making, unrestricted by any legal limit. If the term 'Sovereignty' be thus used, the sovereign power under the English constitution is clearly 'Parliament.' But the word 'Sovereignty' is sometimes employed in a political, rather than in a strictly legal sense. That body is 'politically' sovereign or supreme in a State the will of which is ultimately obeyed by the citizens of the State. In this sense of the word, the electors of Great Britain may be said to be, together with the Crown and the Lords, or perhaps, in strict accuracy, independently of the King and the Peers, the body in which sovereign power is vested. But this is a political and not a legal fact. The electors can in the long run always enforce their will. But the courts will take no notice of the will of the electors. The judges know

In like manner, in the case of the United States, Austin does not discover legal Sovereignty in the legislative bodies of the individual Commonwealths, or in the federal Congress, or in both combined. He sees the legal competence of these bodies apparently limited by written constitutions, and therefore places Sovereignty in the electorates that select the bodies by which these written instruments may be amended. "I believe," says he, "that the Sovereignty of each of the States, and also of the larger State arising from the federal union, resides in the State's government, not its ordinary legislature, but the body of its citizens which appoint its ordinary legislature, and which, the union apart, is properly sovereign therein." 25 The same criticism is here valid that was applied to Austin's location of Sovereignty in the English electorate. His doctrines are unsatisfactory, not only to the jurist, but to those who, when they speak of sovereignty, refer to the ultimate force of Public Opinion, for those who take this latter view make the electorate but an organ of the whole body of citizens, by whom it is influenced and in many ways controlled.

Professor John Dewey makes also the criticism that this electorate is not even determinate. His argument is as follows: If the electorate be the sovereign, then each voter is a sharer in the Sovereignty. But what of the voters who prove to be in the minority? "If we say he (ie., one of the minority) did share in Sovereignty because he had a right to vote, we say Sovereignty may be exercised apart from the utterance of commands, indeed, even in opposing the fundamental command. But if we say that, since not participating in the expression of the

nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its being passed or kept alive in opposition to the wishes of the electors."

The Province of Jurisprudence Determined, ed. 1861, p. 222.

supreme command, he is not sovereign, the question arises by what right he voted at all." 26

This reasoning of Professor Dewey is unsatisfactory. It is just as applicable to a legislative body as to a popular gathering. What of the members of the minority in the English Parliament? The fact is, that when Austin or any other writer refers to an electorate as exercising Sovereignty, he, or they, refer to such an electorate as a collective body of which each member possesses an indivisible portion of the Sovereignty of the whole. That is, that the citizen shares in the Sovereignty not as an individual but as a member of the whole. Each citizen holds, as lawyers say, per tout only, and not per my, as Professor Dewey would seem to think. Rousseau makes this distinction very plain by expressly distinguishing between the "will of all" and the "General Will." 27 The distinction between Sovereignty as a juristic conception and the ultimate conditioning power of popular opinion, was, however, one that was never reached by Rousseau, who completely identifies Sovereignty with the "General Will." It is in consequence of this assumption, that, in searching for the manner in which this sovereign power may be legally exercised, he was forced to hold that "laws being but authentic acts of the General Will, the sovereign cannot act except when the People is assembled." 28 And again, that "Sovereignty cannot be represented for the same reason that it cannot be alienated; it consists essentially of the General Will, and the will cannot be represented; it is the same or it is different; there is no mean. The deputies of the people then are not, and cannot be its representatives, they are only its commissioners; they can conclude nothing definitely. Any law which the people in

"Austin's Theory of Sovereignty," Pol. Sci. Quar., March 1894.

"The Social Contract, bk. II, chap. III.