201 



truth that there is, in fact, a power outside of the jjovernment and para- 

 mount to it, of which the government itself is mainly an instrumentality.. 

 The defects of the theory are : (1) that it regards merely the actual power 

 of the government and does not consider the more important question of 

 its rightful power, or right ; and (2) that it fails to identify the nature of 

 this paramount power by which the government is controlled. 



With regard to the extent of the actual power of the government, all 

 that can be said is that it varies infinitely in different times and countries, 

 and hence, that no theory wiih reference to it is possible. It may, how- 

 ever, be asserted that the power of the government is, in no case, unlim- 

 ited; — -which is but to say, that the omnipotence of human power is incon- 

 ceivable. And it may be further asserted that there is always a power 

 outside of it that is in general and in the long run, superior to it. This 

 consists, it is sometimes said, in public opinion ; but the expression is an un- 

 fortunate one, including not only the settled concurring convictions of men 

 with reference to fundamental questions, but also transient popular opinion, 

 which is altogether unreliable, and which in fact is often disregarded by 

 the government. We must regard the expression, therefore, as referring 

 only to opinion that is permanent, that relates to matters of right and 

 wrong, and in which all or nearly all concur ; which corresponds almost 

 precisely to the Greek term nomos. In this sense, all governments are, in 

 the long run, to a large extent, and in civilized countries almost entirely, 

 governed by public opinion ; and in this we have the actual power to which 

 doubtless Prof. Tiedeman more or less consciously refers. This concur- 

 rent opinion, however, consists in an agreement, not of the wills, but of 

 the consciences of the people ; and it simply affirms not what is, but what 

 ought to be, and is, therefore, nothing more nor less than the general 

 conscience or positive morality of the community. That it is always cor- 

 rect cannot be affirmed, but that it is so in the main is beyond question ; 

 and it is also certain^as will be shown hereafter — that it is the only ad- 

 missible practical standard by which questions of general concern are to 

 be immediately determined. We have here, therefore, not merely an 

 actual power, by which governments are in fact largely controlled, but 

 also the rightful power by which they ought to be controlled ; and in 

 which, in fact, the rights of individuals and of governments find their 

 source. And thus again we arrive at the so-called doctrine of sovereignty 

 which asserts that the law or justice is the true sovereign. And this we 

 may conceive is the unconscious but real theory intended by those who 

 assert the fiction of a "general will," vested in the government, repre- 

 senting the particular wills of all the individuals in the community.* 



* The matter in this ami the foUovviug section has been collected from various sources, 

 some of which it has been impracticable to note. In addition to the sources specified 

 in the notes, I have in this chapter, and also in the Introduction, drawn largely upon 

 Mr. Smith's Elements of Right and of the Law (Callaghan & Co., Chicago), and a mono- 

 graph of the same author entitled A Critical History of Modern English Jurisprudence. 



