§ 21. “Sovereignty of the United Kingdom.”

SOVEREIGNTY.—A clear conception of the meaning of “sovereignty” is the key to all political science. The relation of the Commonwealth to the Empire, and the relation of the Federal and State Governments of the Commonwealth to one another, can hardly be appreciated apart from a sound study of the principle of sovereignty. The speculations of such philosophers as Hobbes, Locke, and Rousseau, the learning of Blackstone and Bentham, the critical analysis of Austin, the historical researches of Maine, and the labours of such modern writers as Holland, Dicey, Leslie Stephen, Burgess, and many others, have all contributed, from many sides, to throw light on the central idea which the word sovereignty represents; and of recent years the interchange of thought between English and American writers, and a comparative study of their widely different institutions, has done much to clear away doubts and difficulties. In this work only a brief note can be devoted to this vast subject.

Before attempting any definition of sovereignty, it is advisable to call attention to the necessity of avoiding confusion between three distinct uses of the word:—(1) Legal sovereignty—as when we speak of the sovereignty of the British Parliament; (2) political sovereignty—as when we speak of the sovereignty of the people; (3) titular sovereignty—as when we speak of the sovereignty of the Queen. As the primary meaning of the word is the legal one, it is best to begin from that standpoint.

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(1.) LEGAL SOVEREIGNTY.—Sovereignty, then, is an attribute, and the most essential attribute, of a State—that is, of an independent political community. It is defined by Burgess (Pol. Science, I. 52) as “original, absolute, unlimited, universal power over the individual subject and over all associations of subjects.” The legal sovereign is that person, or determinate body of persons, which possesses, in a State, a power which in point of law is absolute and unlimited. Such a body is the British Parliament; such a body are the electors of the United States organized under the Constitutional provision for the amendment of the Constitution. Legally speaking, such a body of persons is the State itself; the State is the sovereign, and the sovereign is the State.

Corresponding to this view of legal sovereignty as power, we may define political sovereignty as the will which lies behind the power. Political sovereignty is thus also an attribute of the State; it is the corporate will—or what Rousseau called the “general will”—of the community. And from this definition of political sovereignty as the “general will” of the community, we may in turn deduce legal sovereignty as the legal expression, or embodiment, or manifestation, of that will.

Sovereignty, therefore, resides in the State, but it is principally manifested through the Government, its creature. Every competent organ of government, legislative, judicial, or executive—Parliaments, courts, constitutional assemblies, electorates in their legislative capacity, Kings, Presidents, Governors, Executive Councils—are organs through which the sovereign power is exercised. In one sense the aggregate of these bodies within a State, as exercising the sum-total of sovereign power, may be considered as depositaries of sovereignty; but in another and a truer sense sovereignty is located in the ultimate legislative organ—the supreme organic unity which in the last resort controls all the others.

Can sovereignty be legally limited? The above definitions negative the possibility; but they are not universally concurred in. The historical school point to communities in which no sovereign can be discovered; and Dicey (Law of the Constitution, p. 135) fails to see why it should be inconceivable that the framers of a Constitution should have deliberately omitted to provide means of altering it. Most writers, however, agree that sovereignty cannot be limited even by a direct prohibition in the fundamental instrument, but that such a prohibition is inconsistent with the very conception of a State, and must be disregarded. (See Burgess, Pol. Science, I. pp. 51-2; W. W. Willoughby, The Nature of the State, p. 214.)

True political science seems to point to the conclusion that sovereignty is incapable of legal limitation, either from without or within. A sovereign body cannot be legally controlled by another body, for then that which controls would be sovereign. Nor can it be legally controlled by a prohibition, express or implied, in a written document; for then the written document would be sovereign—though it can have neither will nor power. Either the organization which framed the Constitution can be legally convoked again—in which case it is the sovereign; or it cannot—in which case its prohibition, directed against the State, is without sanction and without effect.

As sovereignty is incapable of legal limitation from without, so it is unable to bind itself. With a sovereign there is no such thing as “irrevocable laws.” The sovereign power which makes a law can alter or repeal it. It is true that sometimes a sovereign body may pass a law and declare it to be so sacred and organic that it shall last for ever, such as the Act for the union of England and Scotland. Such a declaration of intention or policy would have great weight with, but could not legally bind, succeeding Parliaments. As a matter of fact that Act of Union has already been amended in certain particulars, which were originally declared to be fundamental and unchangeable conditions of the union. So the Act for the union of Great Britain and Ireland has been amended by the disestablishment of the Irish Church.

Influences on Sovereignty.—But although there can be no legal control or limitation of the sovereign authority, there are many practical and effective influences

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at work in every well-ordered society, which prevents the sovereign power from being exercised with unrestricted, reckless, and irresponsible omnipotence, and which tend to chasten and temper, if not curtail, the exercise of supreme authority, whether it be vested in an absolute monarch, or in a king in parliament, or in a complex body such as a three-fourth majority of the Legislatures of the United States. Among those influences some are internal, to be found in the character, organization, and historical antecedents of the sovereign person or body; but the most powerful are the external surroundings and circumstances which guide and direct the mode of calling into action the sovereign will, such as the right of petition for redress of grievances; the right of public criticism; the right of the public to combine and remonstrate against oppression and wrong-doing, and above all the knowledge possessed by sovereign rulers that if they persist, for any protracted period, in attempting to govern contrary to reason and justice, and contrary to the wishes, interests, and instincts of the bulk of their people, they will lose popular support, encounter popular resistance, and run the risk of rebellion and revolution; as actually happened in England during the reign of James II. These moderating forces, proceeding from the environments of a sovereign, or of a sovereign body, tend no doubt to reduce the dogma of unrestricted, uncontrolled sovereignty to a legal fiction. Legally the Sultan of Turkey could abolish Mohammedanism and introduce Christianity into his dominions, but he would not and dare not do so. Legally the Czar of Russia could revoke the edict for the emancipation of the serfs, but he would not and dare not do so. Legally the Queen in the British Parliament could tax the Colonies, as was done in the reign of George III., but they would not dream of such a policy, much less attempt it. Similarly, two-thirds of Congress could propose, and three-fourths of the legislatures of the States could ratify, a constitutional law re-establishing slavery in America. But the moral influences to which legal sovereignty is subject, emanating from considerations of expediency, justice, and humanity, would frown down and destroy any such proposals.

Formal Restraints.—Important among the internal restraints upon sovereignty are those which relate to the legal organization and structure of the sovereign body. Just as the sovereign body may be restrained by its moral character and environments, so it may be restrained by its legally determined structure or procedure. Thus there is a formal restraint on the sovereignty of the British Parliament in the necessity for the concurrence of Queen, Lords, and Commons. There is a formal, and most effectual, restraint on the sovereign amending power of the United States in the requirement of ratification by three-fourths of the States. There is a formal restraint on the quasi-sovereignty of the Commonwealth in the requirement of ratification by a majority of the people and also by a majority of the States—and also, in some cases, by every State affected. These formal restraints are, strictly speaking, restraints on the mode of exercise of sovereignty, not on the sovereignty itself. Nevertheless, they may attain any degree of stringency, from requiring the concurrence of special majorities, to requiring the complete unanimity of every member of a complex body. Thus the formal limitation may amount practically to an almost absolute prohibition of amendment; and the sovereign power may be, as the American sovereign is, “a despot hard to rouse,” “a monarch who slumbers and sleeps.” (Dicey, Law of the Constitution, p. 137; and see Sidgwick, Elements of Politics, Appendix.)

(2.) POLITICAL SOVEREIGNTY.—Political sovereignty has been incidentally defined in our discussion of legal sovereignty. As a legal conception, a sovereign is one whose commands, whether just or unjust, wise or unwise, politic or impolitic, the courts will enforce. With political sovereignty the courts have nothing to do. They cannot recognize the “general will” of the political sovereign, but only the manifestation of that will as declared by the legal sovereign.

“That body is ‘politically’ sovereign or supreme in a State the will of which is ultimately obeyed by the citizens of the State. In this sense of the word the electors of Great Britain may be said to be, together with the Crown and the Lords, or perhaps,

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in strict accuracy, independently of the King and the Peers, the body in which sovereign power is vested. For, as things now stand, the will of the electorate, and certainly of the electorate in combination with the Lords and the Crown, is sure ultimately to prevail on all subjects to be determined by the British Government. The matter indeed may be carried a little further, and we may assert that the arrangements of the Constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country. But this is a political, not a legal fact. The electors can in the long run always enforce their will. But the Courts will take no notice of the will of the electors.” (Dicey's Law of the Constitution, p. 66.)

“Adopting the language of most of the writers who have treated of the British Constitution, I commonly suppose that the present parliament, or the parliament for the time being, is possessed of the sovereignty; or I commonly suppose that the King and the Lords, with the members of the Commons' house, form a tripartite body which is sovereign or supreme. But, speaking accurately, the members of the Commons' house are merely trustees for the body by which they are elected and appointed; and, consequently, the sovereignty always resides in the King and the Peers, with the electoral body of the Commons. That a trust is imposed by the party delegating, and that the party representing engages to discharge the trust, seems to be imported by the correlative expressions ‘delegation’ and ‘representation.’ It were absurd to suppose that the delegating empowers the representative party to defeat or abandon any of the purposes for which the latter is appointed; to suppose, for example, that the Commons empower their representatives in Parliament to relinquish their share in the sovereignty to the King and the Lords.” (Austin's Jurisprudence, vol. I., p. 253.)

It is quite true, as Dicey, in another passage, points out, that no English judge ever conceded, or under the present Constitution could concede, that Parliament in any legal sense is a trustee for the electors. Equally, as a matter of law, some jurists have contended that the Queen is the supreme administrator and supreme legislator, acting by and with the advice of ministers in matters of administration, and by and with the advice and consent of Parliament in matters of legislation. That is true in theory and as a constitutional form. Legal fictions are useful and potent solvents in the transformation of ideas. The legal sovereignty of Parliament is undoubted; but the sovereignty of Parliament, a principle of transcendent force and importance which superseded the sovereignty of royalty, is in reality, if not in name, rapidly tending to become a fiction, like that of regal sovereignty, which for a time it supplanted; it is gradually giving way before the idea of the sovereignty of the electoral body, or the sovereignty of the people represented by the electors. At present the idea of political sovereignty is prominent. Men commonly speak to-day in the language of politics, rather than in the language of jurisprudence. And the tendency to confuse legal and political sovereignty is increased by the fact that in some countries—for instance, Switzerland, and even the United States—the two are to a great extent identical. Wherever the ultimate legal sovereign is not a representative, but a constituent body—wherever the people themselves enact the supreme law—the political sovereign and the legal sovereign are the same. For good or for evil, the movement in favour of the Referendum—which finds a place in this Constitution as a means for the alteration of the organic law—tends in this direction.

(3.) TITULAR SOVEREIGNTY.—“This term is used to designate the king, or queen, of the United Kingdom; often also in the phrase ‘Our Sovereign Lord the King,’ or ‘Our Sovereign Lady the Queen,’ in Acts of Parliament and proclamations. There is implied in it the theory that the king is the possessor of sovereignty, or the powers of supreme government, as a monarch, in the strictest sense of jurists and constitutional writers; and in that sense it has long ceased to be a correct designation. The king is neither ‘sovereign’ nor ‘monarch,’ but, this notwithstanding, he hardly is mentioned oftener by his appropriate title of ‘king’ than by those inappropriate and affected names.” (Austin's Jurisprudence, Campbell's ed., Note, p. 242.)

DELEGATED SOVEREIGNTY.—In all the constitutional Acts passed by the British Parliament conferring the right of self-government on British colonies, it is expressed or implied that the sovereignty is vested in the Queen. This form of expression is in accordance with traditional theory and usage, and it has been continued as a matter of courtesy, notwithstanding the fact that the form is at variance with the reality and the substance; as elsewhere pointed out (Note, § 11) the Queen shares with the Houses of

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the British Parliament in the sovereignty of the British Empire. The office of legislation, like the judicial and executive functions of sovereignty, may be delegated by the sovereign principal to subordinate persons or bodies, such as colonial governors and colonial parliaments. Within the limits of their constitutional Acts and charters, such governors and parliaments may exercise all the ordinary authority of a sovereign, in the same way as the Queen in the British Parliament, subject only to the same moral checks and restraints which have been already enumerated. (Dicey, Law of the Constitution, p. 95.)

The constitutional Acts of the colonies of Great Britain are illustrations of this delegation of sovereign power. Most of these colonies possess Statutory Constitutions, conferring on their respective legislature, together with the Queen, represented by a governor, authority to legislate for the peace, order, and welfare of the people within their respective territories. The Constitution of the Dominion of Canada is a conspicuous example of this delegation. The Constitution of the Australian Commonwealth is an even more notable instance of the same process. But colonies, dominions, or commonwealths, having such a system of government, substantially free and practically independent, are still subject to the original sovereign body, the Queen in the British Parliament. That power, though dormant, is not extinguished or abandoned by the delegation. There is merely an implied compact not to interfere with those communities as long as they govern themselves according to the terms of their respective Constitutions. (Markby's Elements of Law, pp. 3, 4, 20.)

Proclamation of Commonwealth.

3. It shall be lawful for the Queen, with the advice of the Privy Council22, to declare by Proclamation24 that, on and after a day therein appointed25, not being later than one year after the passing of this Act23, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united26 in a Federal Commonwealth27 under the name of the Commonwealth of Australia. But the Queen may, at any time after the Proclamation, appoint a Governor-General28 for the Commonwealth.

CANADA.—It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a day therein appointed, not being more than six months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be one Dominion under the name of Canada; and on and after that day those three Provinces shall form and be one Dominion under that name accordingly.—B.N.A. Act, sec. 3.

HISTORICAL NOTE.—Clause 3 of the Commonwealth Bill of 1891 was as follows:—

“It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a day therein appointed, not being later than six months after the passing of this Act, the colonies of [here name the Colonies which have adopted the Constitution] … shall be united in one Federal Commonwealth under the Constitution hereby established, and under the name of the Commonwealth of Australia; and on and after that day the said colonies shall be united in one Federal Commonwealth under that name.” (Conv. Deb., Syd. [1891], p. 557.)

At the Adelaide Session, the clause was introduced in the same form, except that it was provided that the colonies “shall be united in a Federal Constitution under the name of the Commonwealth of Australia, and on and after that day the Commonwealth shall be established under that name.” On the motion of Mr. Isaacs, the clause was amended to read that “the people of” the colonies should be united. A further amendment by

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Mr. Isaacs that they should be united “by”—not “in”—a Federal Constitution, was negatived. (Conv. Deb., Adel., pp. 620–1.) At the Sydney session, on Mr. O'Connor's motion, “one year” was substituted for “six months.” (Conv. Deb., Syd. [1897], pp. 227–8.)

At the Melbourne session, a proposal by Mr. Symon, to omit “the Commonwealth of,” was negatived by 21 votes to 19 (Conv. Deb., Melb., pp. 1746–50); and after the second report the same amendment, again moved by Mr. Symon, was negatived by 25 votes to 18. Mr. Reid proposed to add words enabling the Queen, at any time after the proclamation, to appoint a Governor-General, who might, before the Commonwealth was established, summon members of the Federal Executive Council and appoint other necessary officers; but Mr. Barton thought this went too far, and suggested the words: —“The Queen may, at any time after the making of the proclamation, appoint a Governor-General for the Commonwealth.” This was agreed to. (Conv. Deb., Melb., pp. 1920–2.) Drafting amendments were made after the fourth report.

In the Imperial Parliament, the names of the federating colonies were filled in, with the provision for including Western Australia in the Proclamation if the Queen were satisfied that the people of Western Australia had agreed to the Constitution. (See Historical Introduction, p. 242, supra.)