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s； which he calls positive law。 But the problem is simply moved a step further back and there left unsolved。 The true question is Whence the sovereignty？ What is the assignable warrant for this unqualified supremacy assumed by one； or by a small number； or by a large number； over the rest？ A critic might fitly say 〃We will dispense with your process of deriving positive law from unlimited sovereignty： the sequence is obvious enough。 But first prove your unlimited sovereignty。〃 To this demand there is no response。 Analyse his assumption； and the doctrine of Austin proves to have no better basis than that of Hobbes。 In the absence of admitted divine descent or appointment； neither single…headed ruler nor many…headed ruler can produce such credentials as the claim to unlimited sovereignty implies。
〃But surely；〃 will come in deafening chorus the reply； 〃there is the unquestionable right of the majority； which gives unquestionable rights to the parliament it elects。〃 Yes； now we are coming down to the root of the matter。 The divine right of parliaments means the divine right of majorities。 The fundamental assumption made by legislators and people alike； is that a majority has powers to which no limits can be put。 This is the current theory which all accept without proof as a self…evident truth。 Nevertheless； criticism will； I think； show that this current theory requires a radical modification。 In an essay on 〃Railway Morals and Railway Policy；〃 published in the Edinburgh Review for October； 1854； I had occasion to deal with the question of a majority's powers as exemplified in the conduct of public companies； and I cannot better prepare the way for conclusions presently to be drawn； than by quoting a passage from it：
〃Under whatever circumstances； or for whatever ends； a number of men co…operate； it is held that if difference of opinion arises among them； justice requires that the will of the seater number shall be executed rather than that of the smaller number； and this rule is supposed to be uniformly applicable； be the question at issue what it may。 So confirmed is this conviction and so little have the ethics of the matter been considered； that to most this mere suggestion of a doubt will cause some astonishment。 Yet it needs but a brief analysis to show that the opinion is little better than a political superstition。 Instances may readily be selected which prove； by reductio ad absurdum； that the right of a majority is a purely conditional right； valid only within specific limits。 Let us take a few。 Suppose that at the general meeting of some philanthropic association； it was resolved that in addition to relieving distress the association should employ home…missionaries to preach down popery。 Might the subscriptions of Catholics； who had joined the body with charitable views； be rightfully used for this end？ Suppose that of the members of a bookclub； the seater number； thinking that under existing circumstances rifle…practice was more important than reading； should decide to change the purpose of their union； and to apply the funds in hand for the purchase of powder； ball； and targets。 Would the rest be bound by this decision？ Suppose that under the excitement of news from Australia； the majority of a Freehold Land Society should determine； not simply to start in a body for the gold…diggings； but to use their accumulated capital to provide outfits。 Would this appropriation of property be just to the minority？ and must these join the expedition？ Scarcely anyone would venture an affirmative answer even to the first of these questions； much less to the others。 And why？ Because everyone must perceive that by uniting himself with others； no man can equitably be betrayed into acts utterly foreign to the purpose for which he joined them。 Each of these supposed minorities would properly reply to those seeking to coerce them： 'We combined with you for a defined object； we gave money and time for the furtherance of that object； on all questions thence arising we tacitly agreed to conform to the will of the greater number； but we did not agree to conform on any other questions。 If you induce us to join you by professing a certain end； and then undertake some other end of which we were not apprised； you obtain our support under false pretences； you exceed the expressed or understood compact to which we committed ourselves； and we are no longer bound by your decisions。' Clearly this is the only rational interpretation of the matter。 The general principle underlying the right government of every incorporated body； is； that its members contact with each other severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they are incorporated； but in no others。 To this extent only can the contact hold。 For as it is implied in the very nature of a contact； that those entering into it must know what they contact to do； and as those who unite with others for a specified object； cannot contemplate all the unspecified objects which it is hypothetically possible for the union to undertake； it follows that the contact entered into cannot extend to such unspecified objects。 And if there exists no expressed or understood contact between the union and its members respecting unspecified objects； then for the majority to coerce the minority into undertaking them； is nothing less than gross tyranny。〃
Naturally； if such a confusion of ideas exists in respect of the powers of a majority where the deed of incorporation tacitly limits these powers； still more must there exist such a confusion where there has been no deed of incorporation。 Nevertheless the same principle holds。 I again emphasize the proposition that the members of an incorporated body are bound 〃severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they are incorporated； but in no others。〃 And I contend that this holds of an incorporated nation as much as of an incorporated company。 〃Yes； but；〃 comes the obvious rejoinder； 〃as there is no deed by which the members of a nation are incorporated as there neither is； nor ever was； a specification of purposes for which the union was formed； there exist no limits； and； consequently； the power of the majority is unlimited。〃 Evidently it must be admitted that the hypothesis of a social contract； either under the shape assumed by Hobbes or under the shape assumed by Rousseau； is baseless。 Nay more； it must be admitted that even had such a contract once been formed； it could not be binding on the posterity of those who formed it。 Moreover； if any say that in the absence of those Stations to its powers which a deed of incorporation might imply； there is nothing to prevent a majority from imposing its will on a minority by force； assent must be given an assent； however； joined with the comment that if the superior force of the majority is its justification； then the superior force of a despot backed by an adequate army； is also justified： the problem lapses。 What we here seek is some higher warrant for the subordination of minority to majority than that arising from inability to resist physical coercion。 Even Austin； anxious as he is to establish the unquestionable authority of positive law； and assuming； as he does； an absolute sovereignty of some kind； monarchic； aristocratic； constitutional； or popular； as the source of its unquestionable authority； is obliged； in the last resort； to admit a moral limit to its action over the community。 While insisting； in pursuance of his rigid theory of sovereignty； that a sovereign body originating from the people 〃is legally free to abridge their political liberty； at its own pleasure or discretion；〃 he allows that 〃a government may be hindered by positive morality from abridging the political liberty which it leaves or grants to its subjects。〃（4*） Hence； we have to find； not a physical justification； but a moral justification； for the supposed absolute power of the majority。 This will at once draw forth the rejoinder 〃Of course； in the absence of any agreement； with its implied limitations； the rule of the majority is unlimited； because it is more just that the majority should have its way than that the minority should have its way。〃 A very reasonable rejoinder this seems until there comes the re…rejoinder。 We may oppose to it the equally tenable proposition that； in the absence of an agreement； the supremacy of a majority over a minority does not exist at all。 It is co…operation of some kind； from which there arise these powers and obligations of majority and minority； and in the absence of any agreement to co…operate； such powers and obligations are also absent。 Here the argument apparently ends in a dead lock。 Under the existing condition of things； no moral origin seems assignable either for the sovereignty of the majority or for the limitation of its sovereignty。 But further consideration reveals a solution of the difficulty。 For if； dismissing all thought of any hypothetical agreement to cooperate heretofore made； we ask what would be the agreement into which citizens would now enter with practical unanimity； we get a sufficiently clear answer； and with