in any legal sense a "trustee1" for the electors.

Of

such a feigned "trust" the Courts know nothing. The plain truth is that as a matter of law Parliament is the sovereign power in the state, and that the "supposition" treated by Austin as inaccurate is the correct statement of a legal fact which forms the basis of our whole legislative and judicial system. It is however equally true that in a political sense the electors are the most important part of, we may even say are actually, the sovereign power, since their will is under the present constitution sure to obtain ultimate obedience. The language therefore of Austin is as correct in regard to "political" sovereignty, as it is erroneous in regard to what we may term "legal" sovereignty. The electors are a part of and the predominant part of the politically sovereign power. But the legally sovereign power is assuredly, as maintained by all the best writers on the constitution, nothing but Parliament.

It may be conjectured that the error of which (from a lawyer's point of view) Austin has been guilty arises from his feeling, as every person must feel who is not the slave to mere words, that Parliament is (as already pointed out) nothing like an omnipotent body, but that its powers are practically limited in more ways than one. And this limitation

1 Austin admits this, but the admission seems almost fatal to the contention that Parliament is not in strictness a sovereign, See Austin, Jurisprudence, i. 252, 253.

2 See p. 65, ante.

Existence

of actual

not in

Austin expresses, not very happily, by saying that the members of the House of Commons are subject to a trust imposed upon them by the electors. This, however, leads us to our second difficulty, namely, the co-existence of parliamentary sovereignty with the fact of actual limitations on the power of Parliament.

As to the actual limitations on the sovereign limitations power of Parliament.-The actual exercise of auto power thority by any sovereign whatever, and notably by consistent Parliament, is bounded or controlled by two limitations. Of these the one is an external, the other is an internal limitation.

with sovereignty.

External limit.

The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects or a large number of them will disobey or resist his laws.

This limitation exists even under the most despotic monarchies. A Roman Emperor, or a French King during the middle of the eighteenth century, was (as is the Russian Czar at the present day) in strictness a "sovereign" in the legal sense of that term. He had absolute legislative authority. Any law made by him was binding, and there was no power in the empire or kingdom which could annul such law. It may also be true, though here we are passing from the legal to the political sense of sovereignty,-that the will of an absolute monarch is in general obeyed by the bulk of his subjects. But it would be an error to suppose that the most absolute ruler who ever existed could in reality make or change every

THE SOVEREIGNTY OF PARLIAMENT.

71

law at his pleasure. That this must be so results from considerations which were long ago pointed out by Hume. Force, he teaches, is in one sense always on the side of the governed, and government therefore in a sense always depends upon opinion. "Nothing," he writes, " appears more "surprising to those, who consider human affairs "with a philosophical eye, than the easiness with "which the many are governed by the few; and

the implicit submission, with which men resign "their own sentiments and passions to those of their "rulers. When we enquire by what means this "wonder is effected, we shall find, that, as Force is "always on the side of the governed, the governors "have nothing to support them but opinion. It is, "therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as well as to the most free and most popular. The Soldan "of Egypt, or the Emperor of Rome, might drive "his harmless subjects, like brute beasts, against "their sentiments and inclination: But he must, at least, have led his mamalukes, or prætorian bands, "like men, by their opinion"."

tions of

exercise

The authority that is to say, even of a despot, Illustradepends upon the readiness of his subjects or of some external portion of his subjects to obey his behests; and this limit on readiness to obey must always be in reality limited. of sovereign This is shewn by the most notorious facts of history. None of the early Cæsars could at their pleasure

power.

have subverted the worship or fundamental institutions of the Roman world, and when Constantine carried through a religious revolution his success was due to the sympathy of a large part of his subjects. The Sultan could not abolish Mahommedanism. Louis the Fourteenth at the height of his power could revoke the Edict of Nantes, but he would have found it impossible to establish the supremacy of Protestantism, and for the same reason which prevented James the Second from establishing the supremacy of Roman Catholicism. The one king was in the strict sense despotic; the other was as powerful as any English monarch. But the might of each was limited by the certainty of popular disobedience or opposition. The unwillingness of subjects to obey may have reference not only to great changes, but even to small matters. The French National Assembly of 1871 was emphatically the sovereign power in France. The majority of its members were (it is said) prepared for a monarchical restoration, but they were not prepared to restore the white flag the army which would have acquiesced in the return of the Bourbons, would not (it was anticipated) tolerate the sight of an anti-revolutionary symbol; "the chassepots would go off of themselves." Here we see the precise limit to the exercise of legal sovereignty; and what is true of the power of a despot or of the authority of a constituent assembly is specially true of the sovereignty of Parliament; it is limited on every side by the possibility of popular resistance. Parliament might

legally establish an Episcopal Church in Scotland; Parliament might legally tax the Colonies; Parliament might without any breach of law change the succession to the throne or abolish the monarchy; but every one knows that in the present state of the world the British Parliament will do none of these things. In each case widespread resistance would result from legislation which, though legally valid, is in fact beyond the stretch of Parliamentary power. Nay more than this, there are things which Parliament has done in other times and done successfully which a modern Parliament would not venture to repeat. Parliament would not at the present day prolong by law the duration of an existing House of Commons. Parliament would not without great hesitation deprive of their votes large classes of Parliamentary electors; and, speaking generally, Parliament would not embark on a course of reactionary legislation; persons who honestly blame Catholic Emancipation and lament the disestablishment of the Irish Church do not dream that Parliament could repeal the statutes of 1829 or of 1869. These examples from among a score are enough to show the extent to which the theoretically boundless sovereignty of Parliament is curtailed by the external limit to its exercise.

limit.

The internal limit to the exercise of sovereignty Internal arises from the nature of the sovereign power itself. IllustraEven a despot exercises his powers in accordance tions. with his character, which is itself moulded by the circumstances under which he lives, including under