same thing. The Czar of Russia is said to be sovereign through his dominions. He is said to command all the laws which he permits to exist. Yet his real strength lies in the fact that the brute force of the community is behind him aiding in the law's execution. Take a regiment under the leadership of a single man. In one sense, the commanding officer is the ruling power; in another sense, the regiment or rather any of the members who, by force of numbers, arms, skill, etc., could by brute force overcome the rest, is the power which would force the individual will if force were necessary. Carlisle has said that discipline in arms is always a miracle. I would add that law and government are also miracles. Why should the people, why should the army of Russia obey the Czar? Why should the people of the United States recognize as laws to be obeyed the acts of Congress or of State Legislatures? These are questions which I do not believe one of the sixty-five millions of us could'answer satisfactorily to himself. If, therefore, we regard the question of sovereignty from a statical standpoint, as what enforces the law, we must answer that as far as there is any force, it is the brute force of the community. We come now to the second question, “What causes changes in the law?" I suppose that most of us would ascribe such changes to legislation. Legislation is indeed the immediate source of many changes. But we must remember that only that is law which men in society actually, as a matter of fact, follow. Men follow a rule of action because they desire to follow it. The brute force in the sense just explained is behind those laws alone which the people, as a whole, desire to follow. They cease following one rule of action and follow another because they desire to change and follow that other. Be the causes of change what they may, the fact that man does change his ideas concerning rules of conduct is undisputed. Now, if A. changes his opinion, from whatever cause, of what it ought to be, C. may, from that very fact, change his opinion also. All of us, some in a greater and some in a less degree, influence others. Our changing opinions as to what ought to be the law, as far as they affect others, tend to change the law. If, therefore, we call sovereignty the power of changing the law, in so far as each of us can effect our fellows we are each sovereign. Sometimes the changing opinions of one man changes or affects the opinions of many others. The Czar of Russia issues an ukase. It is his personal opinion as to what ought to be. Instantly, millions of Russians recognize that which he has said as the rule of action which, from various motives, partly religious, partly political, but mainly as an inherited tendency, they desire to and do follow. What a Czar does in high degree, a judge does to less extent. For instance, a court of high authority applies the principles of law to a new case. In doing so, the court may alter those principles hitherto received. This may be done consciously or unconsciously. True, the fiction is always kept up that the old principles are not altered. The farthest a court will ever admit that it has gone at the time of the decision, will be to say that it is returning to sound principles, anciently in force before some recent mistakes. And yet, if a new principle really has been established, the truth will in subsequent cases be acknowledged and even pointed out with pride. The Czar and the judge each have a large measure of sovereignty in this sense of the term. But this sovereignty, or the capacity to change the opinions of others and consequently to develop the law, is not confined to those in office. The individual advocates a change in the laws, others follow his opinion, and as a result of his agitation, the change takes place. Thus each of us are in a degree sovereign, but each in a different degree. In this second sense, as the actual power to change the law sovereignty is never absolute. We have never heard of a person, no matter what influence he might have on the desires of others, who was sovereign in this absolute sense. Take the most absolute monarch that ever sat upon a throne, (and none more absolute than the eastern potentate, whose "word is law" and whose subjects would sacrifice their lives to grant him the slightest wish) even he is not sovereign, perhaps, indeed, far less sovereign, in the sense we are now discussing, than many a private citizen of influence in a western community. For if an eastern potentate ever thought of legislating, which he never does, except to enact a new tax law; if he ever, for instance, attempted to change the law of the devolution of property on death, perhaps taking from the heir, the ability (prized by all religious Hindoos), to perform the sacra, he would find that his law, for the first time, would not be obeyed, and his power would be undermined. In a certain class of laws, those dealing with the army and the revenue, the sovereignty is unquestioned, but on other subjects there is practically no sovereignty at all. Take again the Congress of the United States. Are its members sovereign? In a sense, yes; in another, no. Let them all be convinced, or a majority of them, that interstate freight should be regulated along certain lines, then regular action will on this subject make a new law. It is absurd to say that in this instance they hold but a delegated sovereignty. The people who elected them may have never thought of interstate commerce or its regulation. On certain subjects these men are sovereign, but only on certain subjects. Let them pass a statute giving the property of the country to men over six feet. This could never be a law in the sense in which we use that term as a recognized legal relation. It is true it would be unconstitutional, but though the written constitution were to be formally abolished to-morrow, and the Congress in formal terms said to be unlimited in power, the limitation to its sovereignty by the facts, would still remain unaltered. It could no more make an act, such as we have mentioned, recognized as law, than could the British Parliament, which is theoretically omnipotent. A limited sovereignty is often said to be a contradiction in terms. It would seem, however, from our analysis, that if we mean by sovereignty, the actual, not theoretic power, to change the laws, sovereignty is always limited. And not only is sovereignty in this sense always limited, but if we add together the sovereignty of a great number of persons, the sum will never be any absolute sovereignty in the sense that any change which they may advocate will be followed by the brute force of a community and given the force of law. The changing opinions of influential men would not alone suffice to change the laws in every particular. Man's influence over his fellow men is never so absolute. Law has its basis ultimately in the conditions physical, economic and social which exist. The influence of a change in opinion without a change in conditions must be limited. Before leaving the subject it may be well to point out that the term sovereignty is sometimes used in a purely legal sense, as the theoretical power to make absolute changes in the law. Thus, in this sense, Parliament is absolute. Any rule of action made by it would be technically law from the lawyer's standpoint; though, as we have seen, not actually law, because the direction of Parliament would, as a matter of fact, only be followed within certain limits. In this sense, conventions in three-fourths of the United States are with us sovereign, because their united action could produce a change in our constitution. As used in this last sense, the term "sovereignty" is of no importance to the student of law's development. His business is to deal with actualities--not with theoretic possibilities. [All legal works received before the first of the month will be reviewed in the issue of the month following. Books should be sent to W. S. Ellis, Esq., 736 Drexel Building, Philadelphia, Pa.} TREATISES, TEXT-BOOKS, ETC. COMMENTARIES ON THE LAW OF PRIVATE CORPORATIONS. BY SKYMOUR Paul: West Publishing Co. 1895. BY FRANCIS B. TIFFANY. St. (No. 8, Hornbook Series.) By Captain EDWIN F. GLENN, THE LAW RElating to the PRODUCTION AND INSPECTION OF BOOKS, PAPERS AND DOCUMENTS IN PENDING CASES. An Address by THOMAS J. SUTHERLAND. Chicago: The Gladstone Publishing Co. 1895. OUTLINES OF TRIAL PROCEDURE. By J. L. BENNETT. Donohue & Henneberry (Printers), Chicago. 1895. YOUR WILL: HOW TO MAKE IT. By GEORGE V. TUCKER. Boston: Little, Brown & Co. 1895. SELECTED CASES, ETC. AMERICAN Railroad and CORPORATION REPORTS, Annotated. Vol. X. Edited by JOHN LEWIS. Chicago: E. B. Myers & Co. 1895. AMERICAN ELECTRICAL CASES. With Annotations. Volume IIL 1889-1892. Edited by WILLIAM W. MORRILL. Albany: Matthew Bender. 1895. PAMPHLETS. THE QUIZZER SERIES. Nos. 8 and 9. Questions and Answers on Common Law Pleading (No. 8). By GRIFFITH OGDEN ELLIS and EMIL W. SNYDER. Questions and Answers on Corporations (No. 9). By WM. C. SPRAGUE. Detroit: The Collector Publishing Co. 1895. UNIFORM STAte Legislation. By FREDERIC J. STIMSON. A Paper Submitted to the American Academy of Political and Social Science. Publication No. 145, of the American Academy of Social Science, Philadelphia. 1895 |