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will." There is something of ambiguity in his use of this term. In one place he speaks of it as the "impalpable congeries of the hopes and fears of a people, bound together by common interests and sympathy." This meaning corresponds with Rousseau's, and is practically equivalent to public opinion. The other meaning, which, indeed, forms the tacit basis of all his reason- ing, is much narrower, and is practically only that section of public opinion which is concerned with right and wrong. This meaning will appear later, in the discussion of right.
Willoughby' has cleared away the confusion into which Green had cast the theory of sovereignty by his discussion of the loca- tion of sovereignty in the body politic. Sovereignty, being a poli- tical term and designating coercive power, can be exercised only when society is politically organized. Until a people become politically organized in the form of a state there is no sover- eignty. "Public opinion," "general will," "the ultimate poli- tical sovereignty," and similarterms, denote only certain conditions of political action, but are not in themselves legal or civil in their nature.' They enter into the question of political expedi- ency, into the forecast of results by the sovereign, and into the formation of his opinion ; but it is the expression of legal will through coercive agencies that marks the location of sovereignty. "Sovereignty is exhibited whenever the will of the state is expressed. In fact, it is almost correct to say that the sovereign will is the state, that the state exists only as a supreme control- ling will, and that its life is only displayed in the declaration of binding commands, the enforcement of which is left to mere executive agents."^ Now, the will of the state is seen wherever in government there is exercise of choice, or discretion. Where this shall be depends on the actual constitution of the govern- ment. In modern constitutions it exists [primarily in the legis- lature; but the executive, who ordinarily has no will or purpose of his own and is but the instrument of the legislative will, has also limited discretion in the ordinance-power, and is to that extent sovereign. "Constitutional conventions," in so far as
^The Nature of the Statf (Macmillan, i8g6).
'P. 287. 3 p. 302.
