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giving it elegance of style and completeness of method. He thought it possible to change law from a system of habits into a system of commands. These were, of course, the ideas which were most attractive, most congenial, to the mind of Austin.
But, however natural such conceptions may have been to Austin, it must certainly be regarded as singular that, although rejected on the Continent, where sovereignty had throughout the most important formative periods of European history been quite unequivocally lodged in unmistakable sovereigns, these notions should have been accepted in England, the land where law had been least subject to doctrine, most observant of times and circumstances, most piecemeal in its manner of construction, least like a set of commands, and most like a set of habits and conventions. Doubtless we are to remember, however, that the feudal theory of law had long been held with perfect confidence by English lawyers in calm despite of fact. Probably it is true that the English mind (our own), with its practical habit, likes nice systems well enough because of their appearance of completeness, has a sense of order which enjoys logic, without having any curiosity or capacity for the examination of premises. The Englishman has always been found ready to accept, from those
who had the leisure to amuse themselves in that way, interesting explanations of his institutions which did not at all fit the actual facts. It has caused him no inconvenience, for he has not perceived the lack of adjustment between his actual transactions and the theory he has accepted concerning them. He has, of course, not troubled himself to alter his institutions to suit his philosophy. That philosophy satisfied his thought and inconvenienced neither Parliament nor the law courts. And so he had no doubt Austin was right.
Austin's logic is unrelenting, and the loyalty of his followers unflinching. Sir Henry Maine having shown that throughout the greater part of history the world has been full of independent political societies possessing no law-making sovereign at all, and it having become notorious that legislation has everywhere played a late and comparatively subordinate part in the production of law, the latest writers of the Austinian school have reduced jurisprudence to a merely formal science, professing to care nothing for the actual manner in which law may originate, nothing even for most of the motives which induce men to obey law, provided you will but concede that there is, among a great many other imperative motives, one which is universally operative, namely, the fear of the compulsion of physical force, and that there is
at least one sovereign function, namely, the application of that physical force in the carrying out of the law. They ask to be allowed to confine themselves to such a definition of positive law as will limit it to "rules which are enforced by a political superior in his capacity as such.”
They take for their province only a systematic description of the forms and method "of the influence of government upon human conduct" through the operation of law. They thus virtually abandon the attempt to find any universal doctrines respecting the rôle of government as a maker of laws. For them government is not a creative agent, but only an instrumentality for the effectuation of legal rules already in existence. So hard is the principle of life to get at that they give over all attempts to find it, and, turning away from the larger topics of the biology, restrict themselves to the morphology, of law.
When it came to pointing out the body of persons with which sovereignty was lodged in particular states of complex constitutional structure, Austin was sometimes very unsatisfactory. Sovereignty is lodged in England, he says, in the king, the peers, and—not the House of Commons, but—the electorate. For he holds the House of Commons to be merely a trustee of the electors, notwithstanding the fact that the electors exercise their right of franchise
under laws which Parliament itself enacted and may change. In the United States he believes " it to be lodged "in the States' governments, as forming an aggregate body;" and he explains that by the government of a state he does not mean its “ordinary legislature, but the body of its citizens which appoints its ordinary legislature, and which, the Union apart, is properly sovereign therein.” Apparently he is led thus to go back of the House of Commons and the legislatures of our states to the electorates by which they are chosen, because of his conception of sovereignty as unlimited. If he stopped short of the electors, some part of his sovereign body would be subject to political superiors. If he were to go beyond the electors, to the larger body of the people
to the women and the children and the men who cannot vote-he would come upon, not a 'determinate,' but an indeterminate body of persons.
Our own writers, however, having made bold to embrace the dogma of popular sovereignty with a certain fervor of patriotism, have no hesitation about taking the additional step. They maintain, with Lieber, that “according to the views of free men,” sovereignty “can dwell with society, the nation, only." Writers like the late Judge Jameson, of Chicago, declare that they have very definite ideas of what this means. They think that Mr. Bryce expounded
the doctrine when he wrote his chapter on “Government by Public Opinion.” “When the true sovereign has spoken,” says Judge Jameson, “at public meetings, by the press, or by personal argument or solicitation, the electorate, when it acts, either registers the behests of the people or ceases betimes further to represent them."
“The pressure of public opinion consciously brought to bear upon the electorate," he declares to be, even when "inarticulate" (whatever inarticulate pressure may be), “a clear and legitimate exercise of sovereign power;" and he thinks that Mr. Herbert Spencer meant the same thing when he deciared that "that which, from hour to hour, in every country, governed despotically or otherwise, produces the obedience making political action possible, is the accumulated and organized sentiment felt towards inherited institutions made sacred by tradition," inasmuch as Mr. Spencer proceeds to say with all plainness, “Hence it is undeniable that, taken in its widest acceptation, the feeling of the community is the sole source of political power; in those communities, at least, which are not under foreign domination. It is so at the outset of social life, and it still continues substantially so." And yet, if Mr. Spencer means the same thing that Judge Jameson means, what are we to think of the present fraternization of France