Page:Harvard Law Review Volume 2.djvu/99

 THE LIMITS OF SOVEREIGNTY. 81

ereign power is measured by the habit, the opinion, and the dis- position of the bulk of the society.

Bentham appears to have held this view of the limitation of sovereignty, although, from some expressions which come after the passage here quoted, it is doubtful whether he distinguished clearly the position of the sovereign from that of a subordinate legislative body. The following extract is from the Fragment on Govern- menty Chapter IV. : —

ence of any assignable bounds to the supreme power, I added I could not but subjoin. One author (^Blacks tone), indeed, in that passage in which, short as it is, he is most explicit, leaves, as we may observe, no room for it 'However they began,' says he (speaking of the several forms of government) — * however they began, and by what right soever they subsist, there is and must be in ALL of them an authority that is absolute. . . .* To say this, however, of a// governments without exception; — to say that no assemblage of men can subsist in a state of government, with- out being subject to some one body whose authority stands un- limited so much as by convention ; — to say, in short, that not even by convention can any limitation be made to the power of that body in a State which in other respects is supreme, would be say- ing, I take it, rather too much : it would be saying that there is no such thing as government in the German Empire ; nor in the Dutch Provinces ; nor in the Swiss Cantons ; nor was of old in the Achaean league."
 * ' XXXIV. Let us now go back a little. In denying the exist-
 * unless where limited by express convention : * for this exception

that need surprise us. By what is it that any degree o{ power (meaning political power) is established? It is neither more nor less, as we have already had occasion to observe, than a habit of, and disposition to obedience : habits speaking with respect to past acts ; disposition, with respect to future. This disposition it is as easy, or I am much mistaken, to conceive as being absent with regard to one sort of acts, as present with regard to another. For a body, then, which is in other repects supreme, to be conceived as being with respect to a certain sort of acts limited, all that is necessary is, that this sort of acts be in its description distinguishable from every other."
 * XXXV. In this mode of limitation I see not what there is

" XXXVI. By means of a convention, then, we are furnished