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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. 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 quasisovereignty 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

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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,

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.

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(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.)

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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

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 legislatures, 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.

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3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by Proclamation that, on and after a day therein appointed25, not being later than one year after the passing of this Act, 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 united 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-Generals 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

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.)

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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.)

§ 22. "Privy Council."

This body was originally one of the most important councils of the Crown, variously called the Concilium Regis, the Ordinary Council, the Continual Council, and the Secret or Privy Council (Privatum Concilium). It acquired the last-named designation during the reign of Henry VI. (1422-1461). It was a council of confidential advisers, who were in constant attendance upon the king and assisted him in the decision of all questions of public policy and in the administration of the business of the kingdom. It represented the unity of the executive government. It consisted of nobles and other eminent persons in whom the king had confidence. Sir Edward Coke described it as an honourable and revered assembly of the king (4 Institutes, 53). Lord Hale described it as the Concilium in concilio, referring to the fact that the members of that council, being peers, were also members of the Magnum Concilium for which, in consultation with the king, they prepared the business. It was foreshadowed in the reign of Henry III. and assumed a definite organization during the long period covered by the successive reigns of the three Edwards. It was one of the three groups into which the Magnum Concilium was originally divided and which afterwards became fused into the House of Lords. These groups were-(1) The Lords Spiritual; (2) the Lords Temporal; and (3) the official and bureaucratic element immediately associated with the king in the government of the realm. (Gneist, English Const., pp. 349-351.)

In the middle ages the number of members of the Privy Council was limited to about fifteen. During the reign of Henry IV. (1401) the Council was composed of nine peers, three bishops, six knights and one untitled person. During the reign of Charles II. (1660-1685) the number of members had so increased as to make the body unwieldly "and unfit for the secrecy and dispatch which are necessary in many great affairs." A plan of reconstruction proposed by Sir William Temple was adopted. According to this the number of Privy Councillors was restricted to thirty, of whom fifteen were to be ministers and principal officers of state, and the remaining fifteen included ten lords and five commoners chosen by the king. During the same reign the germ of the modern Cabinet appeared in the custom which then began of consulting only a select or confidential committee of the Council in reference to important parlia mentary and executive business. After that reign the numerical strength of the Privy Council, notwithstanding Temple's plan, went on increasing. At the present time there is practically no limit to the number of persons who may be appointed members of the Council. There are now more than 200 Privy Councillors who may be classified as

follows:-(1) Members of the Royal Family and noblemen of the highest rank; (2) statesmen who hold or have held high political office; (3) the Speaker and members of the diplomatic service who have attained the rank of ambassadors; (4) great officers of state departments on their retirement after long and distinguished service; (5) the Lord Chancellor and other judges of the superior courts; (6) ecclesiastical dignitaries; (7) the Commander-in-Chief and the Master-General of the Ordnances; (8) colonial ministers who have rendered conspicuous service to the Empire. These eminent personages are styled collectively "The Lords and others of Her Majesty's Most Honourable Privy Council," and they are each entitled to be addressed as “The Right Honourable.” In modern practice this numerical and talented complexity of the Council has not been found inconvenient, as no Privy Councillors, except those occupying for the time being official positions, political or judicial, are summoned to advise the Crown, either in matters of state or in matters of law. (Stephen's Comm., 4th ed., vol. 2, p. 467.)

THE POLITICAL COMMITTEE.-The true Privy Council of the present day, and the one referred to in the above clause, is the Cabinet. The Cabinet has been defined as the political committee of the Privy Council, especially organized for the purpose of advising the Crown, directing all public departments, and deciding all important questions of administration, subject only to the approval of the House of Commons. (Hearn's Government of England, p. 197)

THE JUDICIAL COMMITTEE.-In Colonial causes the Privy Council had, from time immemorial, both original and appellate jurisdiction.

"Whenever a question arises between two provinces out of the realm as concerning the extent of their charters and the like, the King in his Council exercises original jurisdiction therein, upon the principles of feudal sovereignty. And so, likewise, when any person claims an island or a province, in the nature of a feudal principality, by grant from the King or his ancestors, the determination of that right belongs to the sovereign in council; as was the case of the Earl of Derby, with regard to the Isle of Man, in the reign of Queen Elizabeth; and the Earl of Cardigan and others, as representatives of the Duke of Montague, with relation to the Island of St. Vincent, in 1764. And to the same supreme tribunal there is, besides, in causes of a certain amount, an appeal in the last resort from the sentence of every court of justice throughout the colonies and dependencies of the realm. Practically, however, all the judicial authority of the privy council is now exercised by a committee of privy councillors, called the Judicial Committee of the Privy Council, who hear the allegations and proofs, and make their report to Her Majesty in council, by whom the judgment is finally given." (Stephen's Comm., 4th ed., vol. 2, p. 470-1.)

The statutory jurisdiction of the Privy Council was first regulated in 1833 by the Act 3 and 4 William IV. c. 41, passed for the better administration of justice in the judicial branch of the Council. Under that law the Judicial Committee of the Council was definitely constituted. This tribunal was composed of the Lord President for the time being of the Council, the Lord Chancellor, and such Privy Councillors as held or had held office as Lord Keeper of the Great Seal, Chief Justice or judge of the Court of Queen's Bench or Common Pleas, Chief Baron or Baron of the Court of Exchequer, the Master of the Rolls, the Vice-Chancellor, the Judges of the Prerogative and Admiralty Courts, and the Chief Judge of the Court in Bankruptcy. This Act was amended and extended by 6 and 7 Vic. c. 38 (1843); 7 and 8 Vic. c. 69 (1844); 14 and 15 Vic. c. 83 (1851); 44 and 45 Vic. c. 3 (1881); 50 and 51 Vic. c. 70 (1887); which contain a variety of regulations prescribing the manner of conducting appeals from the colonies. At common law, since modified by statute, the Privy Council had jurisdiction to entertain appeals from the Lord Chancellor in matters of lunacy and idiocy, and in appeals from the ecclesiastical and maritime courts, and in matters of patent and copyright. See note, "Appeal to Queen in Council," § 310, infra.

THE ERECTION OF THE COMMONWEALTH.—Three distinct stages in the erection of the Commonwealth are contemplated by this clause :-(1) The passing of the Imperial Act, (2) the issue of the Queen's proclamation appointing a day within one year after the passing of the Act, (3) the day when the people of the concurring colonies are

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