200 



■cisely the same argument ; but it is a striliing testimony to the lack of defi- 

 nite significance in Prof. Huxley's proposition, (or, rather, I should say, in 

 the proposition attributed to him), that an essentially different conclusion is 

 reached. According to this doctrine — as stated by a late writer* — the sov- 

 ereign is not the government, but something outside of the government. 



"The statement," he says, "that municipal law is 'prescribed by the 

 supreme power in tlie State,' is false and misleading, unless by the 'su- 

 preme power in the State,' is meant the aggregate of all the social forces, 

 both material and spiritual, which go to nialie up our civilization." 



The "supreme power in the State," or the sovereign, is therefore this 

 "aggregate of all the social forces," or, as elsewhere expressed, this "re- 

 sultant of social forces." But this is obviously a merely figurative ex- 

 pression, and renders further definition of the sovereign necessary. This 

 is eflfected by the more definite proposition that the supreme power in the 

 State, or the sovereign, is "that aggregation of individuals which has the 

 actual ability to enforce obedience" — it being added by way of explana- 

 tion that all political power rests merely " upon the possession by the few 

 of the superior strength, both moral and material." 



But this again is a very indefinite notion ; for " the aggregation of in- 

 dividuals which has the actual power " is not the majority of the whole, 

 or even the majority of the dominant party, but the political managers of 

 the latter ; and lience we must have a new sovereign, not only with every 

 election, where the majority changes, but with every change in the man- 

 agers of the prevailing party. 



(3) The theory of Mr. Tiedeman and that of Mr. Donisthorpe, though 

 apparently similar, and therefore liable to be confounded, are, in fact, 

 essentially diflei'ent. The latter regards the government as the sovereign, 

 and the sovereigntj'- as vested in it. The former asserts that the sovereign is 

 something outside of the government ; which lie describes as the "aggre- 

 gation of individuals, which has the actual ability to enforce obedience ;" 

 or, as elsewhere expressed, "those who possess the political power." The 

 former assumes that the power of the government is necessarily irresist- 

 ible, and that when it ceases to be so, it is no longer a government ; the 

 latter that the government has, in fact, no independent power, but merely 

 registers the decrees of the vague and shadowy sovereign existing outside 

 of it. Hence, in Mr. Tiedeman's view, the law consists of the commands, 

 not of the government, but of "those who (for the time being) possess 

 the political power;" and "the commands of these few constitute the 

 law, whatever be their superior viciousness or iniquity." Or, as the doc- 

 trine is expressed by a writer in a late number of the American Laio 

 Review : The law is simply "a system of rules agreed to by the dominant 

 element in the State or community," and "government, merelj^ a contri- 

 vance for the enunciation and enforcement of these rules," 



This tlieory, though perhaps when taken literally, more extravagant 

 tlian any of the others, has at least the merit of recognizing the great 



*Tieileman, Thr Uawiiltai Constitution of the United States. 



