But in the literature dealing with this matter opinions differ widely as to who embodies or possesses the highest power in the state. According to some it is the king, because he wields the sword and therefore can enforce unconditional obedience; according to others it is the Church, because the Law, to be binding, must be moral, and Morality is established by God since the Church is the representative of God on earth. Others again regard the people as a whole as the highest power, because without their assent no law can prevail, and because even the king only has the power of which the people divests itself to transfer it to him. History has advanced beyond this quarrel.
To-day no one dares to dispute the fact that the nation alone is qualified to enact laws for itself through the agency of its chosen representatives, and that no law can be binding for the people without their explicit or tacit consent. In Switzerland, where they have instituted the referendum, the people by their vote can repudiate a law, made by their representatives in their name, before it comes into force; and in the other constitutional states they have recourse to the following expedient: whenever a law is promulgated which seems inacceptable to them, at the next Parliamentary election they vote for men who are pledged to do away with it. The people have the power to make laws, therefore they also have the right to do so, and they do not hesitate to revolt if this right is tampered with. In recent times no nation outside Russia has submitted to having laws forced on it, in framing which it has not co-operated, and which it has not expressly accepted. The United States tore themselves away from the Mother Country with the cry: "No taxation without representation!" and more than a hundred years before that the English people had irrefutably proved to the Stuart king, Charles I, that he had no right to make and unmake laws, by condemning him in a court of law with legal formalities and then having his head cut off by a masked executioner.
The legal code is the concrete form of the Law, and the Law is the crystallization of the most material part of Morality. And as Morality binds every member of the community, as man is only tolerated in the community on condition that he respects Morality, it is a matter of logic that he should also respect the Law; that is to say, that he must not only submit to it because he fears punishment if he fails to do so, but that he must feel obedience to the Law to be part of his Morality, that he must act lawfully at the dictate of his own conscience, and not because of the threat of the power of the state. This might be enunciated as a principle without reservation and without limitation, if in practice the laws always were, as in theory they should be, moral. But this is not necessarily the case. The law is a form, and every form can be abused by filling it with unlawful contents. If an unscrupulous adulterator of wine fills a champagne bottle of the usual shape, complete with metalled and wired cork and a label recommending it, with some disgusting mixture and puts it on the market, he is severely punished for adulteration of food and infringement of the law protecting trade marks. But if the government publish in the _Gazette_ foolish, risky, and perhaps absolutely immoral orders in the form of a law, duly arranged in chapters, articles and paragraphs, as the people are accustomed to seeing their moral laws expressed, who impugns them for it?