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• IX: Obedience
• Note to the Above Essay On the Application of the Theory of Obedience to the Fundamental Definitions of Jurisprudence.
• X: The Nature of Sovereignty
• XI: The Law of Nature
• XII: The Methods of Legal Science
• XIII: The Relations of Law and Religion the Mosque El Azhar
• XIV: Methods of Law-making In Rome and In England
• XV: The History of Legal Development At Rome and In England
• XVI: Marriage and Divorce Under Roman and English Law
• XVII: Inaugural Lecture 1 the Academical Study of the Civil Law
• XVIII: Valedictory Lecture Legal Studies In the University of Oxford

X

THE NATURE OF SOVEREIGNTY

I.

Preliminary.

As the borderland between two kingdoms used in unsettled states of society to be the region where disorder and confusion most prevailed, and in which turbulent men found a refuge from justice, so fallacies and confusions of thought and language have most frequently survived and longest escaped detection in those territories where the limits of conterminous sciences or branches of learning have not been exactly drawn. The frontier districts, if one may call them so, of Ethics, of Law, and of Political Science have been thus infested by a number of vague or ambiguous terms which have provoked many barren discussions and caused much needless trouble to students. The words which serve as technical expressions in adjacent departments of knowledge are sometimes employed in slightly different senses in those different departments; and neither in Ethics nor in Politics has a well-defined terminology become accepted. It is only of late years, when philosophy in becoming less creative has become more critical, that there has been established on the confines of these three sciences a comparatively vigilant police, which is competent, at least in the realm of law, to arrest suspicious phrases and propositions, and subject them to a rigorous examination.

No offender of this kind has given more trouble than the so-called ‘Doctrine of Sovereignty.’ The controversies which it has provoked have been so numerous and so tedious that a reader—even the most patient reader—may feel alarmed at being invited to enter once again that dusty desert of abstractions through which successive generations of political philosophers have thought it necessary to lead their disciples. Let me therefore hasten to say that my aim is to avoid that desert altogether, and approach the question from the concrete side. Instead of attempting to set forth and analyse the doctrines of the great publicists of the sixteenth and seventeenth centuries—Bodin, Althaus, Grotius, Hobbes, and the rest—or the dogmas delivered by Bentham and Austin, who represent the school that has had most influence during the last seventy years in England, I will assume the views of these and similar writers to be sufficiently known, and will reserve criticisms upon them till we have seen whether there may not be found a conception and definition of the thing more plain, simple, and conformable to the facts, than could well have been reached by those who, living in the midst of acute political controversies, were really occupied in solving problems which belonged to their own time, and which now, under changed conditions, seem capable of receiving an easier solution. If we succeed in finding such a conception, we may return to inquire why the modern successors of Hobbes, who had not the same need for a theory as he had, worried themselves over what was really a question rather of words than of substance.

It is well to begin by distinguishing the senses in which the word Sovereignty is used. In the ordinary popular sense it means Supremacy, the right to demand obedience. Although the idea of actual power is not absent, the prominent idea is that of some sort of title to exercise control. An ordinary layman would call that person (or body of persons) Sovereign in a State who is obeyed because he is acknowledged to stand at the top, whose will must be expected to prevail, who can get his own way, and make others go his, because such is the practice of the country. Etymologically the word of course means merely superiority1 , and familiar usage applies it in monarchies to the monarch, because he stands first in the State, be his real power great or small.

II.

Legal Sovereignty (De Iure).

For the purposes of the lawyer a more definite conception is required. The sovereign authority is to him the person (or body) to whose directions the law attributes legal force, the person in whom resides as of right the ultimate power either of laying down general rules or of issuing isolated rules or commands, whose authority is that of the law itself. It is in this sense, and in this sense only, that the jurist is concerned with the question who is sovereign in a given community. In every normal modern State there exist many rules purporting to bind the citizen, and many public officers who are entitled, each in his proper sphere, to do certain acts or issue certain directions. Who has the right to make the rules? Who has the right to appoint and assign functions to the officers? The person or body to whom in the last resort the law attributes this right is the legally supreme power, or Sovereign, in the State. There may be intermediate authorities exercising delegated powers. Legal sovereignty evidently cannot reside in them; the search for it must be continued till the highest and ultimate source of law has been reached.

A householder in a municipality is asked to pay a paving rate. He inquires why he should pay it, and is referred to the resolution of the Town Council imposing it. He then asks what authority the Council has to levy the rate, and is referred to a section of the Act of Parliament whence the Council derives its powers. If he pushes curiosity further, and inquires what right Parliament has to confer these powers, the rate collector can only answer that everybody knows that in England Parliament makes the law, and that by the law no other authority can override or in any wise interfere with any expression of the will of Parliament. Parliament is supreme above all other authorities, or in other words, Parliament is Sovereign.

The process of discovering the Sovereign is in all normal modern States essentially the same. In an autocracy like that of Russia it is generally very short and simple, since all laws (except customs having legal force) and executive orders emanate directly or indirectly from the Czar, and by the law the Czar is the sole legislative authority. Both these cases are simple and easy, because we speedily reach one Person, as in Russia, or one body of persons, as in Britain, to whom the law attributes Sovereignty. But there are cases which present more difficulty, though the principles to be applied are the same.

In a country governed by a Rigid Constitution which limits the power of the legislature to certain subjects, or forbids it to transgress certain fundamental doctrines, the Sovereignty of the legislature is to that extent restricted. Within the sphere left open to it, it is supreme, while matters lying outside its sphere can be dealt with only by the authority (whether a Person or a Body) which made and can amend the Constitution. So far as regards those matters, therefore, ultimate Sovereignty remains with the authority aforesaid, and we may therefore say that in such a country legal Sovereignty is divided between two authorities, one (the Legislature) in constant, the other only in occasional action.

Another class of cases arises in a Federal State, where the powers of government are divided between the Central and the Local Legislatures, each having a sphere of its own determined by the constitution of the federation. In such a State the power of making laws belongs for some purposes to the Central, for some to the Local Legislatures. Thus in the United States, while Congress is everywhere the supreme legislative power for some subjects, the tariff, for instance, or copyright, or interstate commerce, the legislature of each State is within that State supreme for other subjects, the law of marriage, for instance, or of sale, or of police administration. Each legislature therefore (Congress and the State Legislature) has only a part of the sum total of supreme legislative power; and each is moreover further limited by the fact that the Constitution of the United States restricts the general powers of Congress by forbidding it to do certain things, while the powers of each State Legislature are restricted not only by the Constitution of the particular State but by the Constitution of the United States also. These complications, however, do not affect the general principle. In every country the legal Sovereign is to be found in the authority, be it a Person or a Body, whose expressed will binds others, and whose will is not liable to be overruled by the expressed will of any one placed above him or it. The law may, in giving this supremacy, limit it to certain departments, and may divide the whole field of legislative or executive command between two or more authorities. The Sovereignty of each of these authorities will then be, to the lawyer’s mind, a partial Sovereignty. But it will none the less be a true Sovereignty, sufficient for the purposes of the lawyer. He may sometimes find it troublesome to determine in any particular instance the range of action allotted to each of the several Sovereign authorities. But so also is it sometimes troublesome to decide how far a confessedly inferior authority has kept within the limits of the power conferred upon it by the supreme authority. The question is in both sets of cases a question of interpreting the law, which defines in the one case the sphere of power, in the other case the extent of delegation actually made; and this difficulty nowise affects the truth that legal Sovereignty is capable of being divided between co-ordinate authorities, or of being from time to time interrupted, or rather overridden, by the action of a power not regularly at work. It will be understood that I am now dealing with Legal Sovereignty only, and not at this stage touching the question of whether, from the point of view of philosophic theory, Sovereignty is capable of division.

Finally, let it be noted that where Sovereignty is divided between two or more authorities, one of those (or possibly even more than one) may have executive functions only. Where there is but one Sovereign Person or Body, that Person or Body will evidently have both legislative and executive powers, i.e. will be entitled to issue special commands as well as to prescribe general rules. But a division of Sovereignty may assign legislative functions to one authority, executive to another. In the United States, for instance, the President is, by the Constitution, Sovereign for certain executive purposes (e.g. the command of the army), and the legislature cannot deprive him of that Sovereignty. If Congress were to pass an Act taking the command of the army from him, that Act would be void. So in England four centuries ago, although Parliament was already beginning to be recognized as sovereign for legislative purposes, the king had, in some departments, an executive sovereignty which the two Houses of Parliament did not dispute; and he laid claim in the time of the first two Stuarts to a sort of concurrent legislative sovereignty, which it required first a civil war and then a revolution finally to negative and extinguish.

So also it has been argued that Legal Sovereignty may be temporary, yet complete while it lasts, as was that of a Roman dictator. The phenomenon is so rare that we need not spend time on discussing it; but there seems to be in principle nothing to prevent absolute legal control from being duly vested in a person or body of persons for a term which he, or they, cannot extend.

The kind of Sovereignty we have been considering is created by and concerned with law, and law only. It has nothing to do with the actual forces that exist in a State, nor with the question to whom obedience is in fact rendered by the citizens in the last resort. It represents merely the theory of the law, which may or may not coincide with the actual facts of the case, just as the validity of the demonstration of the fifth proposition in the first book of Euclid has nothing to do with the accuracy with which the lines of any actual figure of that proposition are drawn. The triangle in the figure which appears in a particular copy of the book may not have equal sides, nor the angles at the base be equal; this does not affect the soundness of the proof, which assumes the correctness of the figure. So law assumes, and must assume all through, that the machinery required for its enforcement is working in vacuo, steadily, equably, and in a manner capable of overcoming resistance. The actual receiving of obedience is therefore not (as some have argued) the characteristic mark of a Sovereign authority, but is a postulate of the law with regard to each and every of the authorities it recognizes. Penal laws no doubt contemplate transgression, but they assume the power of overcoming it. With the fact that obedience is in any given community rendered imperfectly or not rendered at all, Law as such has nothing to do. In other words, the question of where Legal Supremacy resides is a pure question of Right as defined by law. The Sovereign who exists as of right (de iure) has not necessarily anything to do with the Sovereign who prevails in fact (de facto), though, as we shall see presently, the two conceptions, however distinct scientifically, exercise a significant influence each on the other.

Further: the question, Who is Legal Sovereign? stands quite apart from the questions, Why is he Sovereign? and, Who made him Sovereign? The historical facts which have vested power in any given Sovereign, as well as the moral grounds on which he is entitled to obedience, lie outside the questions with which Law is concerned, and belong to history, or to political philosophy, or to ethics; and nothing but confusion is caused by intruding them into the purely legal questions of the determination of the Sovereign and the definition of his powers. Even the manner in which, or the determination of the persons by whom, the Legal Sovereign is chosen is a matter distinct from the nature and scope of his authority. He is not the less a Sovereign in the contemplation of law because he reigns not by his own right but by the choice of others, as an elective monarch (like the Romano-Germanic emperor) did, or as an elective assembly does to-day. The appointing body, even if it can in a stated way and at a stated time recall its appointment, is not sovereign over him while his powers last. The fact that the House of Commons, a part of the Legal Sovereign of England, is chosen by the people, and that many members of the House of Lords, another part of the Legal Sovereign, have been appointed by the Crown, does not affect the Sovereignty of Parliament, because neither the people nor the Crown have the right of issuing directions, legally binding, to the persons they have selected.

We have already seen that Legal Sovereignty may be limited or divided. But it is further to be noted that the totality of possible legal sovereignty may, in a given State, not be vested either in one sovereign or in all the sovereign bodies and persons taken together. In other words, there may be some things which by the constitution of the State no authority is competent to do, because those things have been placed altogether out of the reach of legislation. We have already remarked that all the American constitutions, for instance, both State and Federal, forbid the legislature to interfere with the socalled ‘primordial rights’ of the citizen. There is thus in the United States no authority invested with legal power, in time of peace, to prohibit public meetings not threatening public order, or to suppress a newspaper. It is true that the people of each State (or of the Union) retain the power to alter their Constitution, but until or unless they do alter it the acting legal Sovereign remains debarred from an important part of the power of Sovereignty. And we may imagine a case in which a Constitution has been enacted with no provision for any legal method of amending it1 . In fact, a somewhat similar condition of things exists in all Musulman countries. In Turkey, the Sultan, though Sovereign, is subject to the Sheriat or Sacred Law, which he cannot alter; and which no power exists capable of altering. A good deal may be done in the way of interpretation; and the desired Fetwa or solemnly rendered opinion of the Chief Mufti or Sheik-ul-Islam can generally be obtained by adequate extra-legal pressure on the Sultan’s part. But no Sultan would venture to extort, and probably no Mufti to render, a fetwa in the teeth of some sentence of the Koran itself, which, with the Traditions, is the ultimate source of the Sacred Law, binding all Muslims always and everywhere.

III.

Practical Sovereignty (De Facto).

We may now turn back to the more popular meaning in which the term Sovereignty is used by others than lawyers2 . Even to the ordinary layman it generally seems to convey some sort of notion of legal right, yet it may be, and sometimes has been, used to denote simply the strongest force in the State, whether that force has or has not any recognized legal supremacy. This strongest force may be a king, or an assembly, or an oligarchic group controlling a king or an assembly, or an army, or the chief or chiefs of an army. It may be and ought to be the legal sovereign, or it may be quite distinct from the legal sovereign and possess no admitted status in the Constitution. The expression is perhaps most frequent in the phrase ‘Sovereign Power,’ which carries with it the idea of its being, whether legal or not, at any rate irresistible. We may define this dominant force, whom we may call the Practical Sovereign, as the person (or body of persons) who can make his (or their) will prevail whether with the law or against the law. He (or they) is the de facto ruler, the person to whom obedience is actually paid.

It is better not to say ‘the person who compels obedience’ or ‘the person who commands physical force,’ because it may not be under positive compulsion, but in virtue of other sources of power than the command of physical force, that obedience is in fact rendered. Religious influence or moral influence or habit may dispose men not only themselves to obey, but to place their service in making others obey at the disposal of the person to whom such influence belongs. A priest or a prophet may be stronger than the king.

The best instances of the Practical or Actual Sovereign are to be found in communities where legal sovereignty is in dispute or has disappeared. Cromwell when he dissolved the Long Parliament, Napoleon when he overthrew the Directory, the Convention when it offered the Crown of England to William and Mary, the Constituent Assembly in France in 1871 when it made peace with Germany before any regular republican constitution had been adopted for France, were actually Sovereign. Even where a Legal Sovereign exists, there are sometimes particular persons or groups who stand out as able to control the State. However, although Thucydides speaks of Pericles as exercising practical control in Athens, it would be going too far to apply to him or to any person in his position such a description as that of de facto sovereign. In most of the South American republics the Practical Sovereign is the army, or a general (or combination of generals) whom the army, whether or no this general be in fact President, will follow. In Egypt, though the Legal Sovereign is the Khedive—for little regard need be had to the theoretical suzerainty of the Turk, which is put in force only when the European Powers choose to use it for their own purposes—the Practical Sovereign has for some years past been the British Government. In Rome, after the revolution which overthrew the republic, the Practical Sovereign was Octavianus Augustus, though the Legal Sovereignty remained vested in the People, subject to the claim of the Senate to exercise certain powers. In Syracuse under Dionysius the Elder, in Florence under Lorenzo dei Medici, each of those tyrants was Practical Sovereign, though neither enjoyed legal supremacy. In England people are accustomed to call the House of Commons the ‘sovereign power,’ though the law makes the consent of the other House and that of the Crown just as necessary to the validity of a statute as is that of the representatives of the people. In Denmark within our own time the Practical Sovereign was for some years the King, because the Constitution, which gives legal sovereignty to the Legislature and King together, was for a while virtually in abeyance, there having been a struggle and deadlock during which the Crown retained its ministers and raised taxes without the concurrence of the popular house. One might refer, by way of illustration, to cases in which some private organization exerts a power which interferes with that of the de iure government. Such was the Vehmgericht in Westphalia in the fifteenth century, such, on a much smaller scale and in a less effective way, were the Molly Maguires of Pennsylvania and the Mafia of Sicily. But these cases lie quite outside our definition: as do those of monarchies in which a strong minister or a father confessor or even a court favourite has held the position of Practical Sovereign, that is to say, has been the person who would and could have his way, wielding the powers of the State at his sole pleasure through his influence upon the will of the titular sovereign1 .

The Musulman world furnishes two instances which deserve a passing word. The Mogul Emperors after Aurungzebe continued to be sovereigns de iure for a long time in Northern and Central India, though it was hard to say, till the East India Company extended its conquests far inland, who was sovereign de facto. Since the time of Sultan Selim the First (ad 1516) the Turkish Sultans have been (in large measure) Khalifs de facto. They claim to be Khalifs de iure, but the better opinion among Muslim sages is that the Khalif must be, as were the Ommiyads and the Abbasides, of the tribe of the Khoreish, to which Muhamad belonged, and in matters of such high sanctity long possession de facto makes no difference. Possibly therefore the Shereef of Mecca may be better entitled to call himself the Khalif de iure, entitled to the obedience of all the Faithful.

Where the Legal is not also the Practical Sovereign, it is obviously a far more difficult task to discover the latter than the former. As respects legal power there are the fixed rules of law, which in communities that have reached a certain stage of development indicate clearly the person (or body) to whom the ultimate right of legislation, or of issuing executive orders, belongs. But the political philosopher or historian who wishes to ascertain the actually strongest force in a State lacks the guidance of such rules as the lawyer possesses. He has to do with facts which are uncertain, with forces which are imponderable. In no two countries, moreover, are the phenomena of Practical Sovereignty quite the same. Nevertheless it is true that there is in every State a Strongest Force, a power to which other powers bow, and of which it may be, more or less positively, predicted that in case of conflict it will overcome all resistance. Here, however, we come upon one of the many difficulties that beset an inquiry into practical supremacy. Are we to take a condition of peace, and ask whose will actually prevails while peace lasts, or are we to suppose a condition of war, and ask who would prevail if the strife between contending authorities were to be fought out by physical force? In the before-mentioned case of Denmark, for instance, though the Crown practically carried on the government, it was by no means clear that, if an insurrection broke out, the Crown would prove to be stronger than the popular chamber or those who supported it. In such inquiries the precision with which Legal Sovereignty can be determined is unattainable, for the political student finds that the terms suited to the phenomena of one country are unsuited to those of another, and that his general propositions regarding the actually Sovereign Powers must be subject to so many qualifications that they virtually cease to be general.

We have, however, found in every political community two kinds of Sovereign, belonging to two different spheres of thought, the Sovereign de iure and the Sovereign de facto. Let us see what are the relations of the two conceptions, or the two concrete persons, each to the other.

IV.

The Relations of Legal to Practical Sovereignty.

The Sovereign de iure may also be the sovereign de facto. He ought to be so; that is to say, the plan of a well-regulated State requires that Legal Right and Actual Power should be united in the same person or body. Right ought to have on its side, available for its enforcement, physical force and the habit of obedience. Where Sovereignty de facto is disjoined from Sovereignty de iure, there will not necessarily be a collision, because the former power may act through the latter. But there is always a danger that the laws will be overridden by the Practical Sovereign and disobeyed by the citizens.

Sovereignty de iure and sovereignty de facto have a double tendency to coalesce; and it is this tendency which has made them so often confounded.

Sovereignty de facto, when it has lasted for a certain time and shown itself stable, ripens into Sovereignty de iure. Sometimes it violently and illegally changes the pre-existing constitution, and creates a new legal system which, being supported by force, ultimately supersedes the old system. Sometimes the old constitution becomes quietly obsolete, and the customs formed under the new de facto ruler become ultimately valid laws, and make him a de iure ruler. In any case, just as Possession in all or nearly all modern legal systems turns itself sooner or later through Prescription into Ownership—and conversely possession as a fact is aided by title or reputed title—so de facto power, if it can maintain itself long enough, will end by being de iure. Mankind, partly from the instinct of submission, partly because their moral sense is disquieted by the notion of power resting simply on force, are prone to find some reason for treating a de facto ruler as legitimate. They take any pretext for giving him a de iure title if they can, for it makes their subjection more agreeable and may impose some restraint upon him.

Sovereignty de iure in its turn tends to attract to itself sovereignty de facto, or, in other words, the possession of legal right tends to make the legal sovereign actually powerful. Hence a ruler de facto is always anxious to get some sort of de iure title, and Louis Napoleon, who had seized power by violence in 1851, thought himself, and doubtless was, more secure after he had got two (so-called) plebiscites in his favour in 1852, recognizing him first as President for ten years and then Emperor. This is not merely because the Legal Sovereign has presumably a moral claim to obedience—I say presumably, because he may have forfeited this claim by tyranny—but also because most men are governed and all are influenced by Habit, and therefore tend to go on obeying the person they have theretofore obeyed. It is moreover easier, in case of conflict, to know who is de iure sovereign than to foretell who will prove to be sovereign de facto; and whereas the de iure sovereign is certain, if victorious, to punish as rebels those who have opposed him, the de facto sovereign, having been himself a rebel, may possibly be more indulgent. Under King Henry the Seventh in England express provision was made by statute for the protection of persons obeying a de facto king1 . Accordingly, when strife arises between two persons or bodies of nearly equal physical resources, each claiming authority, the person who has the better legal claim will usually have the better prospect of success, and the ordinary citizen will be safer in siding with him. This is one of the reasons why conspiracies and insurrections, even against the worst de iure sovereigns, so often fail.

Similarly it happens that where sovereignty de iure is in dispute and uncertain, strife is likely to trouble the practical sphere in the hands of the claimant who for the moment holds the government de facto; and this not merely because some of the people are zealous to support rights which they think infringed upon, but also because the sense of stability which supports a government has been impaired, and the usual check on a resort to physical force thereby removed.

When a sovereign has been long and quietly established de iure, the distinction between law and fact is forgotten, and people assume that whoever has the legal right will also as a matter of course have the physical force to support it. This tends to make the distinction forgotten. Conversely, when de facto sovereignty is frequently in dispute, as happened in the Roman Empire during part of the third century ad, and happens now in some of the so-called republics of Central and South America, the de iure sovereign virtually disappears, and nothing but the actual strength of each de facto sovereign, or pretender to sovereignty, is regarded. Some of these republics are so much accustomed to the suspension of de iure government by de facto disturbance, that they provide that when a rebellion is over the previously enacted constitution shall be deemed not to have lost its force1 . It might be expected that when such a state of things has continued and become familiar, the conception of a legal sovereign would itself fade away and be extinguished. But political necessities and the example of other countries forbid this in the more civilized communities. It is so convenient to all parties to maintain the fabric of ordinary private law with the judicial and executive machinery required to support that fabric, that even when the person (or set of persons) who exercises Practical Sovereignty is frequently changed by revolutions, the substitution of one head for another is not deemed to affect the general machinery. Administration is held to go on de iure, and the new occupant of the supreme power steps at once into the legal position of his predecessor. In the Roman Empire of the first four centuries of our era, the office of Emperor remained with its recognized functions and powers, though the holder of the office was frequently changed by violent means, and seldom possessed what lawyers would call a good title. The individual man was a pure de facto sovereign, often with no legal right to the obedience of the subject, but Caesar Augustus remained unchanged, and probably five-sixths of the population of the Empire did not know the personal name or the previous history of him whom they revered as Caesar Augustus. So the changes in the constitution of France between January, 1848, and February, 1871, in which there were three total and absolute ruptures of legal continuity by revolution, with two interregna under provisional governments, had little effect on the laws or the courts or the civil administration of France. The same thing happened during the dynastic wars of the fifteenth century in England. Thus even in disorderly times the idea of rule de iure is not lost among peoples that have once imbibed it. All through the English Civil War and Protectorate of the seventeenth century strenuous efforts were made by the Long Parliament and by Oliver Cromwell to make their government appear to be de iure, though the Restoration Parliament treated it as having been (on the whole) de facto. In most Central or South American republics, on the other hand, as among the Italian republics of the fourteenth century, the interferences of the de facto sovereign with the course of law and administration are so numerous that the very notion of de iure government loses its practical efficacy, and people simply submit to force, praising the ruler who least abuses his despotic power.

The action and reaction of power de iure and de facto upon one another might be illustrated by a diagram—a sort of political seismographic record—showing how the disturbance of either disturbs the other, and how the steadiness of the de iure needle or the frequent quiverings of the de facto needle indicate the stability or instability of the institutions of a country. One may express the relations of the two somewhat as follows:—

Or, more shortly, the slighter are the oscillations of each needle, the more do they tend to come together in that coincidental quiescence which is an index to the perfect order, though not otherwise to the excellence, of a government.

Let us try to sum up the propositions to which the foregoing inquiry has led us:—

The term Sovereignty is used in two senses, Legal Supremacy and Practical Mastery.

Although Legal and Practical Sovereignty are distinct conceptions, belonging to different spheres, they are in so far related that—

Thus—

To which we may add, with a view to questions to be discussed presently—

Let it be further noted that though one is obliged to speak of the Practical Sovereign as exerting a limitless power, and as some of those who have written on Sovereignty describe the Sovereign as being subject to no restraint whatever, his sole will being absolutely dominant over all his subjects, there has never really existed in the world any person, or even any body of persons, enjoying this utterly uncontrolled power, with no external force to fear and nothing to regard except the gratification of mere volition. The most despotic monarch is bound to respect, and often to bow to, the general sentiment of his subjects. From some acts even a Sultan Hakim in Egypt or a Gian Galeazzo Visconti in Milan recoils, because he feels they might provoke an insurrection or bring about his own assassination. A popular majority (although also to some extent limited) is less sensitive, because individuals, nearly all of them obscure, have less to fear. In this sense a democracy, that is to say, the majority in a democracy, may be a more absolute sovereign than a monarch. But the majority in a democracy has fewer personal temptations to abuse power. It is moreover checked by the feeling that if it does so it may alienate its own more moderate section. Hence it becomes tyrannical only when it is swayed by violent passion, or when it is sharply divided into two sections between whom no moderate party is left.

V.

Roman and Mediaeval Views of Sovereignty.

Let us now turn to consider the theory of Sovereignty which, started by Hobbes, reiterated by Jeremy Bentham, and set forth with dreary prolixity by John Austin, found much acceptance in England during the first three quarters of the present century, though it has latterly lost its former prestige. The modern form of Hobbes’ doctrine (whose original form will be presently stated and examined) is recommended by its apparent simplicity and completeness. But we shall find it to have the defects (1) of confounding two things essentially distinct, the sphere of law and the sphere of fact; (2) of ignoring history; and (3) of being inapplicable to the great majority of actual States, past or present. It can be brought into conformity with the facts only by an elaborate process, either of rejecting a large part of the facts, or else of torturing and twisting the conception itself. A rule which consists chiefly of exceptions is not a helpful rule. In the human sciences, such as sociology, economics, and politics, just as much as in chemistry or biology, a theory ought to arise out of the facts and be suggested by them, not to be imposed upon the facts as the product of some a priori views. If it needs endless explanations and qualifications in order to adapt it to the facts, it stands self-condemned, and darkens instead of illumining the student’s mind.

Obviously however no such theory would have emerged or for so long commanded respect but for causes of considerable weight and permanence. Its origin therefore, and the sources of its influence, deserve to be carefully examined by the light which history supplies. And to explain its origin, one must digress a little from our proper theme, and go back to the fountain of modern legal ideas in the Roman law.

The Roman jurists themselves fell into no confusion between the rights of a legal sovereign and the powers of the actual or (so-called) ‘political’ sovereign, for they dealt with legal sovereignty only, and dealt with it, not as political philosophers, but simply as lawyers. Under the Republic, legislative supremacy belonged to the people meeting in their comitia, while a certain control of the executive magistrates, springing from the right to advise, was practically allowed to the Senate. It may be argued that the people could have legally deprived the Senate of its executive powers, and those who hold this view may if they like hold that the Senate had not in technical strictness any sort of sovereignty even in executive matters1 .

For our present purpose the important point is the period of Justinian, because it was in the form into which he condensed it that Roman law affected political speculation after the twelfth century. Now Justinian’s Institutes and Digest still talk of the Roman people as possessing of right supreme legislative authority, though in point of fact they had not exercised it for more than five centuries. And in recognizing the Emperor as the person who actually possesses legislative power, they deduce his rights from a delegation by the people of their rights, and perhaps, if we are to take their words strictly, a delegation not in perpetuity to the imperial office, but to each individual Emperor in succession. Like the English of the seventeenth century, the Romans were determined worshippers of legality, and sought carefully to obliterate the traces of revolution, so they continued for a long time to treat the arrangement by which supreme authority was vested in a person as the holder of certain magistracies as a provisional and temporary arrangement1 .

It need hardly be said that centuries before Justinian’s day this doctrine of delegation, for a time formally expressed in the so-called lex de imperio passed at the accession of each new Emperor, had become a mere antiquarian curiosity, no more representing the actual facts than the language of the Anglican liturgy regarding the Crown represents the actual condition to-day of the royal prerogative in England. Justinian and his successors had in the fullest sense of the word complete, unlimited, and exclusive legal sovereignty; and the people of old Rome, who are talked of in the Digest, by the lawyers of the second and third centuries, as the source of the Emperor’s powers, were not in ad 533, except in a vague de iure sense, actual subjects of Justinian, being in fact ruled by the Ostrogothic king Athalarich (grandson of the great Theodorich). But it is noteworthy that the lawyers also assigned to the people as a whole, entirely apart from any political organization in any assembly, the right of making law by creating and following a custom, together with that of repealing a customary law by ceasing to observe it, i.e. by desuetude, and that they justify the existence of such a right by comparing it with that which the people exercise by voting in an assembly. ‘What difference,’ says Julian, writing under Hadrian, ‘does it make whether the people declares its will by voting or by its practice and acts, seeing that the laws themselves bind us only because they have been approved by the people1 ?’

It need hardly be observed that if Tribonian and the other commissioners employed by Justinian to condense and arrange the old law had, instead of inserting in their compilation sentences written three or four centuries before their own time2 , taken it upon themselves to state the doctrine of legislative sovereignty as it existed in their own time, they would not have used the language of the old jurists, language which even in the time of those jurists represented theory rather than fact, just as Blackstone’s language about the right of the Crown to ‘veto’ legislation in England represents the practice of a period that had ended sixty years before. But those who in the Middle Ages studied the texts of the Roman law cared little and knew less about Roman history, so that the republican doctrine of popular sovereignty which they found in the Digest may have had far more authority in their eyes than it had in those of the contemporaries of Tribonian, to whom it was merely a pretty antiquarian fiction.

These were the legal notions of Sovereignty with which the modern world started—the sharply outlined Sovereignty of an autocratic Emperor, and the shadowy, suspended, yet in a sense concurrent or at least resumable, Sovereignty of the People, expressed partly in the recognition of their right to delegate legislation to the monarch, partly in their continued exercise of legislation by Custom.

But there was also another influence, born while the autocracy of the early Emperors was passing from the stage of power de facto into that of sovereignty de iure, which told with no less force upon the minds of men during the Middle Ages, and also in the later days when a freer philosophy began to attack the problems of political science. While to the educated classes in old Rome the Emperor’s legal Sovereignty bore the guise of a devolution from that of the People, his provincial subjects, who knew little or nothing of these legal theories, regarded it as the direct and natural consequence of Conquest. By the general, probably the universal, law of antiquity, capture in war made the captured person a slave de iure. Much more then does conquest carry the right of legal command. Conquest is the most direct and emphatic assertion of de facto supremacy, and as the de facto power of the Romans covered nearly the whole of the civilized world, maintained itself without difficulty, and acted on fixed principles in a regular way, it speedily passed into Legal Right, a right not unwillingly recognized by those to whom Roman power meant Roman peace. This idea is happily expressed by Virgil in the line applied to Augustus—

• ‘Victorque volentes
• Per populos dat iura,’

while the suggestion of a divine power encircling the irresistible conqueror, an idea always familiar to the East, appears in the words

• ‘viamque adfectat Olympo,’

which complete the passage.

The feeling that the power actually supreme has received divine sanction by being permitted to prevail, that it has thereby become rightful, and that it has, because it is rightful, a claim to obedience, is clearly put in writings which were destined, more than any others, to rule the minds of men for many centuries to come.

Here the authority of the Emperor is not only recognized as being de iure because it exists and is irresistible, but is deemed, because it exists, to have divine sanction, and thus a religious claim on the obedience of the Christian, while at the same time, in the reference to the fact that the power of the magistrate is exercised, and is given by God that it be exercised, for good, there is contained the germ of the doctrine that the Power may be disobeyed (? resisted) when he acts for evil; as St. Peter himself is related to have said, ‘We ought to obey God rather than men’ (Acts v. 29).

These and other similar dicta in the New Testament are not only evidence of the sentiments of Roman provincials under the earlier Empire, but are also the doctrines, delivered under the highest authority, from which mediaeval thought starts. How they are worked out may be seen by examining the reasonings of Dante in his De Monarchia, or, still better, the political theories of St. Thomas Aquinas. From the fifth to the sixteenth century whoever asked what was the source of legal Sovereignty, and what the moral claim of the Sovereign to the obedience of subjects, would have been answered that God had appointed certain powers to govern the world, and that it would be a sin to resist His ordinance. From the eleventh century onwards it was admitted in Western Christendom, though less cordially in France, Spain, or England than in Italy and Germany, that there were two Legal Sovereigns, and according to the view more generally held, each was de iure absolute, the Pope in spiritual, the Emperor in temporal matters. Both Pope and Emperor were above all positive secular Law, but subject to the Law of Nature and the Law of God, these being virtually the same1 . The power of the Pope came immediately from God, through the institution of Peter as chief bishop. The Emperor’s power, almost equally incontestable, had a double origin. According to the New Testament, that power came from God; according to the Roman law, it had been delegated by the people, the ultimate source of civil authority. St. Thomas Aquinas recognizes sovereignty as originally and primarily vested in the people, hardly less explicitly than does the Declaration of Independence. These two views were capable of being combined, and the theory of delegation did not really reduce the Emperor’s authority, for there was no actual people capable of recalling the rights delegated2 . But there was also another doctrine, according to which the Emperor drew his rights from the Pope, who crowned him, and who as spiritual Sovereign exercised a higher jurisdiction, being responsible for the welfare of the Emperor’s soul. After the days of Pope Gregory the Ninth and the Emperor Frederick the Second, the doctrine held by nearly all churchmen of the inferiority of imperial to papal authority damaged the Emperor’s position. It suffered still more because after those days the Emperor did not rule de facto outside Germany, and not always even within it. Most jurists, however, continued to hold that the rights of the successor of Augustus still existed everywhere de iure, though it was admitted that they consisted only in a sort of over-lordship, which, always ineffective in practice, became constantly more evanescent in theory. Controversy continued to rage over the limits to be drawn between them and the parallel sovereignty of the successor of Peter; and this controversy produced in the fourteenth century an anti-ecclesiastical movement represented in literature by such men as Marsilius of Padua and the English Franciscan William Occam. In those writers one finds the germs of the doctrine, afterwards famous, which refers the origin of the State to the free consent of individual men.

In these mediaeval controversies it was assumed throughout and on all sides that power de facto must follow Sovereignty de iure. But this Sovereignty, although above positive law, being indeed the source of such law, was deemed to be held subject to the Law of Nature, since it is a trust from God. However, as it became more and more clear that the Emperor was ceasing to be an effective ruler, the temporal sovereignty of local kings was fully admitted, and their rights were based partly on the providence of God, which had allowed them de facto power, partly on the feudal relations of lord and vassal, formed by reciprocal promises of protection on one side, of loyal support on the other.

IV.

Modern Theories of Sovereignty.

The sixteenth century brought with it four momentous changes, any one of which would have alone been sufficient to shake the existing fabric of thought and belief:—

The Emperor died out as universal Sovereign, and became thenceforth little more than a German monarch, with a titular precedence over other princes.

The Pope was gravely wounded by a revolt which ended by withdrawing half Europe from his sway.

The feudal structure of society began to crumble away, and therewith the power of the Crown in each country grew.

A new spirit of inquiry, sceptical in its tendencies and no longer deferential to authority, sprang up in Western and Southern Europe.

Thus that traditional doctrine regarding the basis of authority which had been sufficient for the Middle Ages faded into dimness. Morals began to be separated from theology, and the outlines of political science to emerge from feudal law. Men asked what was the basis of a king’s claim to be obeyed. Did Might give Right? or did Right give Might? What was Right itself? Were there any, and if so, what, moral or religious limitations on the powers of a monarch? and if so, did his transgression of these limitations justify rebellion against him? These were not purely speculative questions, because the wars of religion, which brought bodies of subjects into collision with monarchs of a faith opposed to their own, and the Pope into collision with Protestant monarchs, raised issues of principle that were momentous, not merely because they troubled conscientious minds, but also because men felt the need of guidance and sought for it in some belief which could stimulate and inspire their action. Kings were everywhere extending their functions and assuming, more than ever before, the work of legislators, while at the same time subjects found that new reasons had arisen for resisting kings. The old theory which deduced the rights of kings from the grant of authority divinely made to Peter and to Caesar was outworn. A new explanation of the nature of political society was needed; and from that time onward new theories of State power began at intervals to appear.

The particular form taken by the problems which these theories attempted to solve was determined by the conditions of a time in which the coherence of nations and states was threatened on the one hand by religious discord, and on the other by the claims of local magnates as against the Crown. Hence the aim of thinkers was to discover something which would secure the unity of the State. They asked, What is it that holds the State together? Must there not be some supreme Force to overcome the various forces that in each State make for division? Where is that Force to be found? Whence comes its title to rule? In what persons should it be vested? Can it be, or ought it to be, checked? These thinkers did not approach such questions by an induction from the facts of actual states, as we should do, but were guided partly by the dogmas of law and theology which the Middle Ages had bequeathed to them, partly by abstract theories which their advocacy of kingly authority, or papal claims, or popular rights, suggested. And this explains why the Roman Catholic writers, who might have been expected to maintain the absolute sovereignty of kings for the purpose of crushing out heresy, are often found defending the rights of the people, and arguing for the right to revolt against and depose a heretical monarch, such as Henry the Eighth, or Elizabeth, who had fallen away from obedience to that ecclesiastical authority whose rights came from the grant to St. Peter.

The first theory, or at least the first which exerted wide influence, was that of Bodin, a French jurist, whose book, in its earliest form, was published in 1576. In his view Sovereignty or Maiestas is the highest power in a State, which is subject to no laws, but is itself the maker and master of them. It may reside either in one person, which is the best and normal form, or in a number of persons. But in either case it is above all law, incapable of limitation or division, and having an absolute claim to the obedience of all its subjects, irrespective of the justice or policy of its acts. Hence Bodin rejects all so-called limited monarchies and restricted governments; and while he calls the Romano-Germanic Empire of his day not a monarchy but an aristocracy, he finds in the French monarchy a pure autocracy of the proper type. Nevertheless even Bodin admits that, in some sort of vague way, the Sovereign is subject to the Law of God and the Law of Nature, and conceives that he is therefore bound to perform any contracts he may make, and to respect the rights of property and of personal freedom.

The boldest and most logically complete counter theory to that of Bodin came from a younger contemporary of his, the Calvinist Iohannes Althusius (John Althus or Althaus), who was born in 1557, and died in 1638. Calvin himself, and most theologians of his school, had returned to the ancient theocratic view that civil power is derived from God, dwelling especially on Romans viii. 1. Althusius, however, bases the government of the State on a contract between the people and the ruler, and proceeds to assert the rights of the former, as the ultimate source of all power and the only true and permanent depositary of sovereignty, to depose the ruler and resume the delegated power when he has violated his duties and transgressed the measure of authority granted to him1 .

Nearly a century later than Bodin a scheme similar to his, but more thorough-going was propounded by Thomas Hobbes of Malmesbury. This scheme, contained in the book entitled Leviathan (and in the treatise De Cive), cannot be appreciated without remembering the time when the book was written, and the circumstances to which it was addressed. So directly does it contemplate them that it may almost be called a political pamphlet—gigantic, but a pamphlet. The Civil War was raging. The supreme power in England was disputed between the King and the House of Commons. Ecclesiastics, both Episcopalian and Presbyterian, had been prominent in claiming authority for their religious views, and the nation was splitting up partly on political, partly on ecclesiastical lines. Hobbes was equally hostile to all ecclesiastics—to the Anglican theory of divine right, and to the Presbyterian theory of a covenant of the people with God. Yet he did not like to base society upon mere force, because in that he could find no foundation for justice or moral obligation. Hence he clung to the notion of a contract. But it was a new kind of contract, which, not being made with the Sovereign, and being itself irrevocable, can give no ground for insurrection. Seeing disunion and confusion all around him, and men divided by the pretensions of jarring authorities, Hobbes conceived that the three things needful were (1) to find a basis for power which should be permanent and inexpugnable, (2) to make power one and indivisible, and (3) to make it absolute and limitless. Perceiving the flaws in the theory, as old (in a rude form) as the thirteenth century, which founded government on a compact between Sovereign and People, he bases his Sovereignty on a covenant of each member of the community with every other member to surrender all their several rights and powers into the hands of one Person (or Body), who thereby becomes Sovereign, but as against whom, seeing that he is not himself a party to the compact, it cannot be annulled by those who made it, because they made it not with him but with one another. His authority is therefore permanent and unlimited; nor is he, like Bodin’s Sovereign, bound by any preexisting institutions. As the people have, by anticipation, ratified all his acts, everything that he does, however harsh, is just, and gives them no ground for complaint. Indeed his power is justified by the Law of Nature, because the three fundamental Laws of Nature are (1) that all men should endeavour to secure peace, (2) that an individual man should renounce his original rights when the majority will to do so, (3) that every man should observe the covenants which have been made by him, including of course this supreme covenant.

Though Hobbes is chiefly concerned with establishing his Sovereign de iure, and making his de iure autocracy complete, he does also conceive him as enjoying complete de facto power. He could indeed do no otherwise, for the Sovereign he describes is not an actual Sovereign. Hobbes does not profess to be analysing existing States, or explaining existing institutions. He is presenting an ideal State, and arguing that mankind (and in particular England) will never be rid of their present troubles until this Absolute Sovereign of his has been installed with a de iure title so fully recognized that de facto power will follow. The Civil War had raised grave questions in the de iure sphere, and it was natural to believe that, were those questions out of the way, Practical Mastery would accompany Legal Sovereignty. Nor was it so strange as some may fancy to-day, that a philosopher should doubt the possibility of securing peace and order under a monarch limited by law, or indeed under any government consisting of elements so antagonistic as Crown, Lords, and Commons, were then showing themselves to be. Hobbes is a thinker of singular clearness and precision. He is cogent in argument, and adheres to his main propositions with a consistency greater than Bodin had shown. He sometimes seems more disputatious than philosophical. But the reader who would judge him fairly must bear in mind that he is writing with a view to the circumstances of his own time, delivering his blows now at the Solemn League and Covenant, now at the Levellers, now at the parliamentary legalists1 .

Towards the end of the following century Bentham revived Hobbes’s doctrine of Sovereignty, taking it over, however, not so much as either an ideal conception, or a suggestion pointing a way out of civil war, but rather as embodying the characteristic features of a normal State. Bentham was a man of extraordinary ingenuity, fertility, and boldness, but he was sometimes heedless; he lived before the days of what we call the historical method, and he had a hearty contempt, if not for history, yet for the legal institutions it had produced, which indeed he thought mostly wrong. Accordingly, neither the absolutistic proclivities of Hobbes, nor the inapplicability of the Hobbesian theory to the majority of existing governments, deterred him from adopting a doctrine which pleased him by its subjection of vague morality to precise legality, and by its vigorous assertion of the legal omnipotence of an authority which a reformer of his drastic type needed for the accomplishment of his purposes. Bentham therefore had practical reasons for his adhesion to the scheme of Hobbes, far removed as he was from Hobbes’s notions of the anarchic State of Nature and the original covenant. But John Austin, Bentham’s disciple, had less excuse for the use he made of Hobbes’s speculations. It has been doubted whether he understood Hobbes. However this may be, he would seem to have misconceived the position in which Hobbes stood, and to have taken the latter’s argument for an absolute Sovereign as the best way of constituting authority in a State, as a philosophical analysis of the nature and essence of authority in a normal State. Hobbes was the advocate of a scheme intended to cure actual political evils. Bentham was a practical reformer of the law, which certainly needed reform. Austin, however, wrote as a jurist, professing to describe the normal and typical State. He was therefore bound to have some regard to facts, and to present a theory of the State which would have explained and correlated the facts, putting them in their natural and true connexion. Instead of this he has given us a theory, which is so far from being that of the normal modern State, that it is applicable to only two kinds of States, those with an omnipotent legislature, of which the United Kingdom and the late South African Republic are almost the only examples, and those with an omnipotent monarch, of which Russia and Montenegro are perhaps the only instances among civilized countries. In nearly all free countries, except the United Kingdom, legislatures are now restrained by Rigid constitutions, so that there is no Sovereign answering the Austinian definition. In all Muhamadan countries the monarch is legally, as well as practically, restrained by his inability to change the Sacred Law; so that, even in those countries where despotism seems at first sight enthroned, the definition will not work. Even in the application of his own theory to the United Kingdom, Austin falls into an error which betrays its radical unsoundness. Though he defines a Sovereign as ‘the determinate superior who receives habitual obedience from the bulk of a given society’—a definition which belongs to the de facto sphere and suits a de facto sovereign, but does not touch the de iure sovereign, who may have no means of enforcing obedience—still it is plain that his eye is chiefly fixed on law and legal right, and that he assumes that to the person who enjoys legal right obedience will in fact be rendered. A Greek tyrant, such as Agathocles at Syracuse, received habitual obedience from the bulk of the Syracusans; but he was clearly not Sovereign de iure1 . But Austin, when he comes to the United Kingdom, finds his Sovereign not in Parliament, that is to say, in the Great Council of the Nation consisting of the Crown, the House of Lords, and the House of Commons, but in the two former parts of Parliament, along with—not the House of Commons, but—the qualified electors of the nation! This view is opposed not only to law, but also to history, which shows that the Great Council of the Nation has never been deemed to consist of or include ‘trustees’ (as Austin calls them) for the Nation, but to be the Nation itself, assembled for national purposes, its members being either in their own right or, as representatives, plenipotentiary, and enjoying, in contemplation of Law—just as much as did the primitive Folk Mot from which Parliament has gradually developed—the plenitude of the nation’s powers. It is moreover opposed to the facts of the case, because the electors of the country do not legislate, and have no legal means of legislating. Their consent is not required to the validity of the most revolutionary Act of Parliament, as the consent of a majority of the Swiss electors and Cantons is required to a change in the Constitution of the Helvetic Confederation. A statute might conceivably be passed, of which five-sixths of the electors notoriously disapproved, and yet it would be just as good a statute as one against which no voice had been raised. Parliament may even give itself a competence which the electors never contemplated, as it did when it passed the Septennial Act.

Some of those who have admitted that Bentham’s and Austin’s theory is historically indefensible, have sought to excuse its faults on the ground that we must test theories, not by the facts of nascent communities, but by those which the fully-grown modern State presents. But it is in truth quite as inapplicable to most of these modern States as it is to ruder societies. Take, for instance, the Austro-Hungarian monarchy. Where, on Austin’s principles, does Sovereignty reside in this dual State? The ultimate legislative authority, that is to say, the authority which receives commands from no other authority, but gives them to others, is to be found in the so-called Delegations, each composed of thirty members of the Hungarian Parliament, and as many of the Austrian Reichsrath. But these are themselves chosen by the two subordinate Parliaments, and must therefore be subordinate to them, if the British House of Commons is subordinate to the British Electorate. Moreover, the Delegations can legislate on a few prescribed subjects only, all other subjects belonging either to the two Parliaments respectively, or, in the case of Austria, to the legislatures of the several provinces (Kronlände) which make up the Austrian federation, and the Delegations derive their authority from laws passed by the Austrian Reichsrath and by the Hungarian Parliament. Where then does Sovereignty reside? Is it in the authorities which made the Constitution? The Austrian half of the Monarchy received its Constitution from five Statutes passed in 1867, which can be changed only by a two-thirds majority in both Houses of the Reichsrath; the Hungarian half from the laws of 1848, which the Emperor King agreed to bring into force in 1867, and which apparently the Parliament, with the consent of the Monarch, can amend. There is evidently no hope of finding any one Sovereign, in the sense of the Austinian definition, for this great and powerful State1 . Or take the United States, whose Constitution has become a sort of model for many more recent confederations. Austin places Sovereignty in the ultimate power which can alter the Constitution, viz. the people (or peoples)—I use both phrases to avoid controversy—of the States. But in the first place, the people (or peoples) of the States are not a body habitually acting. They did not act at all from 1810 till 1867. They have not acted since 1870. It was because it was impossible to get them to act that the question of slavery proved insoluble by constitutional means. Is there not something unreal and artificial in ascribing Sovereignty to a body which is almost always in abeyance? Moreover, the majorities by which the Constitution can legally be amended are very rarely attainable; and when they are not attainable, there would therefore seem to be no Sovereign at all. And as regards one point—the equal representation of the States in the Senate, even a three-fourths majority of States can do nothing against the will of the State or States proposed to be affected, a further absurd result of the doctrine. One might pursue the argument by examining the case of other federations, such as the Germanic Empire, both the old one and the new one, and show to what strange results these Austinian principles would lead. But the above illustrations may suffice to indicate the extreme artificiality of the doctrine that Sovereignty cannot be divided, as earlier illustrations have shown the inconveniences of confounding purely legal supremacy with actual mastery.

Austin denies that there is any difference between a government de iure and one de facto, because Sovereignty de iure must itself issue from the Sovereign himself, and the same person cannot be both creature and creator. If this means that the British Parliament and the Czar, being legally omnipotent cannot be legally controlled, it is an obvious, but infertile remark, and it conceals the really material fact that both authorities are obeyed because the long-settled custom or law of the country has formed the habit of obeying and the notion that it is a duty to obey. If it means that every Sovereign de facto is also Sovereign de iure, or the converse, it is untrue. Hobbes had a reason for bringing in obedience as the test of the Sovereign. Bentham and Austin have not this reason, for they are in the sphere of law, and law is not concerned with obedience as a fact. The right of a Sovereign to be obeyed does not to the lawyer rest on Force, for he assumes that wherever law exists it will make itself prevail.

VII.

Questions regarding Sovereignty liable to be confounded.

In most of the speculations of the school which traces its origin to Hobbes, and indeed in some of Hobbes’ critics also, there would seem to be a confusion of two or more of six different things, viz.:—

• 1. The conception and definition of legal supremacy.
• 2. The conception of practical mastery.
• 3. The historical question as to the origin of the notion of Legal Right.
• 4. The historical question as to the origin of organized political communities in general, and of the habit of obedience therein.
• 5. The moral obligation on the members of a State to render obedience to the authorities within it, whether those authorities rule by law or by force.
• 6. The moral obligations which bind the holder of power, whether de iure or de facto.

In the hands of Bentham, whom Austin follows, the two last-mentioned confusions, which exercised men’s minds in the days of Hobbes and Locke, have disappeared. Bentham has seen, and has stated with admirable clearness, the line which divides the province of morality from that of legal obligation.

But he has mixed up the other four, and especially the first two—for it is rather by implication than by express words that his writings cover the questions of the historical origin of Right and of the State—in a way that has clouded the mind of many a student since his time, and has in particular produced two capital errors, that of regarding Law as primarily and normally a command, which it certainly was not at first and is only partially now, and that of denying the legal quality of Customary Law, which has been in all countries the most fertile, and is still in some practically the only source of law. This confusion seems to have been due mainly to two causes. One is the omission of the followers of Hobbes to pay any regard to the history of States and Governments, and to perceive that in many stages of their growth the definitions which may suit a normal modern State are quite inapplicable. The other is the attempt to find concise and summary definitions and descriptions which will suit all modern States generally, whatever their diversities from one another, or (to put the same thing in a different form) the habit of arbitrarily assuming one kind of modern State to be the normal State, even though the trend of recent tendency may be away from that type. The remark of Bacon, that men are prone to assume a greater uniformity in Nature than in fact exists, and to conceal real distinctions under identical nomenclature, finds an application in the moral and political sciences as well as in the sciences we call physical. This besetting sin of those who frame logical classifications upon the basis of abstract notions has led the so-called Analytic School of jurists sometimes to ignore the most material facts, sometimes to twist their definitions into a sense far removed from the natural meaning of the words they use.

The truth seems to be that the difficulties which have been supposed to surround the subject of Sovereignty are largely factitious difficulties, and spring from the attempts made to answer questions essentially different by the same terms. Had the qualifying terms de iure or de facto been added every time the word ‘Sovereignty’ was used, most of these difficulties would have disappeared. If we take the six questions just stated, and examine each by itself, there will be nowadays no great conflict of opinion as to the answer which each ought to receive.

Questions 1 and 2 have been already dealt with. When the qualification de iure or de facto, as the case may be, is in each case added, there need be no more mystery about either of them.

As regards 3 and 4, i.e. the origin of political power, whether de facto or de iure, the reply of history is unequivocal. There never was and never could have been any social contract in the sense either of Hobbes or of Rousseau or of any of the other philosophers who have discovered in such a fact the foundation of organized society. Political communities, as every one will now admit, grew up of themselves under the influence of the needs of common defence, of religious belief, of habit, of the aggregative and imitative instincts of mankind. Law grew out of custom, and showed itself first, in most races, in the form of rules for the settlement of disputes, whether regarding property or regarding the compensation to be made for murder or other personal injury. It cannot be said that (as a general rule) authority based on physical force, the form in which Sovereignty de facto is commonly supposed to have begun, preceded authority de iure, for the two have usually grown up together, custom having in it an element of fear and an element of moral deference; and in this growth physical force has played no such predominant part as the school of Hobbes and Austin assign to it. Just as in the case of each individual man the most important, if not the largest part of his knowledge is that which he acquired in the semi-conscious years of childhood, so the chief part of the work of forming political societies was done by tribes and small city communities before they began to be conscious that they were forming institutions under which to live: and the leading conceptions of law and procedure were definite and potent before the beginnings of that direct legislation by a Sovereign which is now represented as the normal action of an organized political body. Nor is the power of the community as a whole, apart from its titular Sovereign or its representative organs, extinct to-day. It survives in the vague but irresistible force of public opinion which controls all those organs.

When we come to the two last of the above questions (5 and 6) we find that a sharp distinction between Legal Sovereignty and Practical Mastery makes it easier to solve the problems they raise. Obedience to a ruler who is Sovereign only de facto and not also de iure is not now deemed a duty, unless the ruler de iure be powerless, or cannot be ascertained, in which cases it may be for the general good that the actual holder of power, even unlawfully obtained, should be supported as against anarchy or the prospect of civil war. But to our minds power de facto, apart from legal sanction, carries no title to respect. When it is abused, the good citizen not only may but ought to resist it.

With the Sovereign de iure the case is different. He has a prima facie claim to obedience, which can be rebutted or disregarded only in one of three events, (a) if he has lost de facto power, and is therefore unable to perform a Sovereign’s duties, (b) if he has, in a State where his powers are limited, himself so gravely transgressed the constitution or laws as either legally or morally to forfeit his Sovereignty, (c) if in a State where his powers are not limited by the Constitution he has so abused his legal power as to become in fact a Tyrant, a foe to the objects of peace, security, and justice, for which government exists. In each of these cases it would be now generally held that the citizen is absolved from his allegiance, and that the sacred right of insurrection which the French of the Revolution and their friend Jefferson so highly prized must come into play. In case (b) the proper course would seem to be to resist the de iure Sovereign by constitutional means, so far as they will go, and only in the last resort by force. If his transgressions have gone so far as to work forfeiture of his legal rights, he is of course no longer Sovereign de iure. In case (c), where no constitutional remedy exists, the formerly de iure ruler, since he has made himself a mere Tyrant or ruler against law, has created a state of war between himself and the citizens, and opposition to him becomes (as in the case of the mere de facto tyrant) a duty which is of stronger or weaker obligation according to the greater or less enormity of his offences, and the greater or less prospect of success in such opposition.

As respects the moral restraints by which the Sovereign, whether de facto or de iure, ought to hold himself bound, few will now dispute that they are substantially the same as those which bind an individual man in the ordinary relations of woman life. Each must use his power in accordance with the general principles of justice and honour, regarding actual power as a trust from Divine Providence, and legal power as a trust from the community also. Only in a single point would it seem that there may be a difference, though one whose limits are difficult to fix in practice, between the moral duty of a Sovereign and that of an individual good citizen. Both are equally bound to strict justice, strict good faith, strict avoidance of cruelty, or even unnecessary harshness. But while the individual ought often to be not merely just but also generous, since it is only his own resources which generosity will impair, it is suggested that the Sovereign has no right to be generous out of the resources of the community for which he is only a trustee. Similarly, while the good man may risk his own life to save the lives of others, the ruler must not risk the life of the community, because he has not been entrusted with any such power. To this it has been answered that the Sovereign is entitled to assume that the community ought to desire and will desire that its powers should be exercised in the best and highest spirit for the good of its members and of the world, and that he may upon this assumption do everything which a high-minded community would do were it consulted. The question, though seldom a practical one, is both interesting and difficult, for even if the analogy of trusteeship be admitted, there is room for much controversy as to the application of the principle in each particular case.

Some few publicists have argued that the Sovereign Power in a State is entirely discharged from all moral obligations when it is a question of preserving the existence of the State itself, and that violence, injustice, and bad faith then become legitimate expedients. In reply to such a detestable doctrine, it is enough to observe (first) that as the Sovereign would be himself the judge of what does involve the life of the State, he would be sure to abuse his freedom from moral ties in cases where the supposed justification did not really arise, and that thus all confidence of one nation in the good faith of another would be destroyed, and (secondly) that the argument must go so far as to put the claim of a State to preserve its collective existence higher than that of the individual to preserve himself from death, for no one will contend that an individual is justified in killing another man (except of course in self-defence) or bringing a false charge against him, for the sake of saving his own life.

This question need not be pursued, because it lies rather outside the particular subject with which we are here concerned. But a few words may fitly be said regarding the bearing of the distinction between that which exists de iure and that which exists de facto on the questions that have arisen regarding Sovereignty in the international sphere.

VIII.

Sovereignty in International Relations.

In that sphere there is no Law, in the strict modern sense, because no superior authority capable of adjudicating on disputes and enforcing rules, and therefore we cannot speak of the Sovereignty of one State over another State in the same sense in which a Person or Body within a State may be called Legally Supreme over the subjects. Nevertheless, where some legal tie has been created between two or more States, placing one in a lower position, we may say that inferiority exists de iure, while if there is merely an actual and continuing disposition of the weaker one to comply with the wishes of the stronger, there is inferiority de facto. Where the laws made by the legislative authority of one State directly bind the subjects of another State, the latter State cannot be called in any sense Sovereign. But between this case and that of absolute independence there are several grades of what may be called semi-Sovereignty, or (perhaps more correctly) imperfect Sovereignty. The dependent State, though not amenable to the laws or courts of the superior one, may have no right to hold diplomatic relations with other States, or may, though entitled to send and receive envoys, have bound itself by a treaty with the superior State to submit for the approval of the latter any treaty it may conclude. Or again, it may have formally accepted the protection of the superior State, or have undertaken to receive its executive head from the latter, or to pay tribute to the latter. In all such cases the tie duly formed between the superior and inferior State, and notified to other States, is a fact of high diplomatic moment in determining the international status of the inferior State. Other States are bound by international usage to take note of the fact, and for one of them to attempt to send an ambassador to, or make a treaty with, an inferior State which had bound itself to a superior State in the way above indicated, would constitute a grave breach of comity—would be treated as what diplomatists call ‘an unfriendly act.’ Although, therefore, there is no Law, in the strict sense of the word, binding these inferior States, but only a Contract, still they may appropriately be said to be de iure dependent, or imperfectly sovereign. The world is full of them. There are a great many in India, bound to the British Crown by engagements which make them more or less subject to British control. Rumania and Servia were formerly in this position. There is one left in South-Eastern Europe, Bulgaria, although the tie binding it to the Turkish Sultan is wearing very thin1 . Bulgaria is not precluded from sending envoys and making treaties. There is one in North Africa—Tunis—which is now, in all but name and legal intendment, a province of France. Another African case, that of the late South African Republic, which, though it could accredit and receive envoys, was liable to have any treaty made by it (except with its neighbour republic) disapproved by Great Britain, has given rise to much controversy. Probably it should not have been called either an internationally Sovereign State, or a Dependent State, but rather a State dependent for one particular purpose and independent for others. The position of Egypt—which is de iure part of the Ottoman Empire for some purposes, is also de iure (for certain other purposes) under the control of six European Powers, and is de facto under the control of one of those six—is a very peculiar one. The varieties of relation in which one State may legally stand to another are indeed endless, and elude any broad classification.

Quite different from these cases are those in which a State, though practically dependent on another State, has contracted no public engagement which affects her theoretical independence. In such cases, third parties (i.e. States) are not prima facie bound (by international usage and comity) to pay any regard to the fact that the inferior State is de facto dependent. They may properly treat it as being completely Sovereign. But just as there are some cases in which a de facto Sovereign becomes morally entitled to obedience from the citizens of a community, so there are some extreme cases in which a State, while technically independent, is notoriously so much de facto under the protection and control of a stronger State that it would be improper for third parties to ignore the actual relation. England (strictly speaking) has no legal control over Afghanistan or Nepal, and had none over independent Burma down to 1885, but Burma was annexed because it toyed with France, and any negotiations by a third power with Afghanistan or Nepal would be resented by England. Persia may possibly sink into a similar position as regards Russia.

IX.

Sovereignty in a Federation.

One peculiar case remains to be mentioned in which theoretical views of the nature of Sovereignty, and a certain tendency to confuse the spheres of de iure and de facto, produce difficulties. It is the case of communities uniting themselves in a Federation, and resigning to it a part of their self-government, and either a part or the whole of their Sovereignty. There have been several such instances, but it will be sufficient to examine one.

When the thirteen semi-independent States—semi-independent because they had parted with some of their powers by the instrument of confederation of 1776—that lay along the Atlantic coast of North America adopted (between 1787 and 1791) the newly drafted Constitution of the Union, they neither expressly reserved nor expressly disclaimed the right to withdraw from it and resume their previous condition. Questions presently arose as to the right of a State to treat as null any act of the Federal legislature which she deemed to go beyond the powers conferred upon it by the Constitution, and ultimately as to her right to withdraw altogether from the Union. In the discussions of these points much stress was laid on the sovereignty which the several States had (so it was urged) originally possessed, which they had never in terms renounced, and which the Eleventh Amendment to the Federal Constitution had, when it declared that no State could be sued by a private person, virtually admitted.

The earlier statesmen, such as Hamilton and Madison, held that Sovereignty was by the Constitution divided between the Nation, acting through Congress and the President, and the States. This was all the more natural, because both the National and the State organs of government were agents of the people, from whom it was admitted that all powers had come, and in whom, therefore, ultimate Sovereignty must lie, though whether in the people as one whole, or in the several peoples of the several States, was another question. But the publicists of the next generation, who on each side led the contest over slavery, refused to acquiesce in any doctrine of division. Like Bodin, Hobbes, Bentham, and other Europeans, they proclaimed Sovereignty indivisible; but while the Northern men found it in the Nation as a whole, the Southerners, led by Calhoun, insisted that it remained in the several States, suspended or temporarily qualified, but capable of resuming its former proportions in each State whenever that State should quit the Union.

On these questions, which were treated as questions of pure law, there was immense debate—acute, learned, passionate, and such debate might have gone on for ever; for each side had a perfectly arguable case, the point being one which the Constitution had (perhaps intentionally) evaded. The term Sovereignty acquired to the disputants a sort of mystic meaning, and many forgot that while the respective rights of the nation and the States were de iure the same in 1860 as they had been in 1791, a new state of things had in fact grown up, which the old de iure conception did not suit. Controversy there would in any case have been, but the controversy was greatly darkened by the metaphysical character which the use of the abstract term Sovereignty imparted to it; and which helped to conceal the momentous change which the political conditions of the country had undergone.

The moral of a concrete case like this is the same as that suggested by a study of the errors of the modern followers of Hobbes. Hobbes seems to assume that his Sovereign de iure will be also Sovereign de facto. Austin cannot admit any one to be a Sovereign who is not so both de iure and de facto. The lawyers on both sides in America grew so hot over their legal controversy as to forget the incompetence of law to deal with certain classes of questions. They ignored history, and got too far away from facts. In the sphere of pure law political facts need not be regarded, for Law assumes that while it remains law its decisions will be accepted. But when it is attempted to transfer the principles and conclusions of law to the sphere of controversies in which not only vast interests, but also violent passions are engaged, there is danger that the law may turn out not to have been made for the new facts and not to be capable of dealing with them, so that efforts to apply it to them will not carry the full moral weight which law ought to exert. That each party should have a plausible legal case makes the risk of conflict greater, because men think themselves justified in resorting to force to defend their legal case, whereas if they left law out of the matter, they might be more willing to consider their chances of practical success, and therefore more ready to accept a compromise. What is deemed a good case de iure has sometimes proved a temptation to a weak State to resist when it had better have agreed with its adversary, or a temptation to a strong State to abuse its strength, whether by resorting to force when it ought to have accepted arbitration, or by expending on the annihilation of its opponent an amount of blood and wealth out of all proportion to the issues involved.

Knots which the law cannot untie may have to be cut by the sword. So it happened in the case of the United States. The Supreme Court tried its hand and failed. The only legislative authority which could have been invoked to settle the dispute by constitutional means was one consisting of a two-thirds majority of each House and a three-fourths majority of the States (acting either through Conventions or through their legislatures), such being the only authority capable of amending the Constitution. It was practically impossible to obtain a majority of three-fourths of the States for an amendment dealing with slavery or with State sovereignty. The resources of law being exhausted, the question of Sovereignty was tried de facto by a war which lasted nearly four years, and in which about a million of men are supposed to have perished.

X.

Conclusion.

Upon a review of the long and, on the whole, unprofitable controversies that have been waged regarding the abstract nature of Sovereignty, one is struck by the fact that with the possible exception of the German philosophers from Kant to Hegel, these controversies have been at bottom political rather than philosophical, each theory having been prompted by the wish to get a speculative basis for a practical propaganda. It was so when the Pope and the Emperor were at war in the days after Gregory the Ninth and Boniface the Eighth. It was so in the days of Bodin, of Althaus, of Hobbes, of Locke, of Rousseau, of De Maistre and Haller. The Romans and the English have contributed less to these controversies than most other nations, not only because both have been eminently practical as well as eminently legal-minded peoples, but because both had the good fortune to obtain a clear de iure Sovereign, who was for some centuries in Rome, and has been for some centuries in England (with short transitional periods, in both cases, of uncertainty), the undisputed possessor not only of de iure, but also of de facto power. Save during a few intervals of conflict, all that we English have needed to know about Sovereignty is where the law places it1 . We were beginning to know this as far back as the thirteenth century; and just at the time when Bodin’s book opens the long disputations of post-mediaeval theorists, Sir Thomas Smith set forth the legal supremacy of Parliament in words to whose clearness and amplitude nothing can be added to-day2 . In the seventeenth century a struggle which arose over the respective rights of the component parts of this composite Sovereign was settled de facto by a civil war and by a revolution, which negatived any right of separate legislation claimed for the Crown and placed the judiciary in a position of independence. Yet the change then made de facto was so far from being fully expressed de iure that whoever should to-day study legal texts only, might conclude that the Crown and the House of Lords are just as important members of the composite Sovereign as is the House of Commons. Since 1689 de iure Sovereignty has coincided with de facto obedience. The idea that power de facto naturally goes along with authority de iure has grown to be almost a part of an Englishman’s mental constitution, a happy result whereof let us all say—Esto perpetua. France and Germany have been less fortunate in their history, and consequently more prolific in their theories. Yet with the exception of a few belated defenders of the old doctrine of ‘divine right,’ Frenchmen are now agreed as to the source of all political power, and the Germans, equally agreed upon this point, are chiefly occupied in debating where, according to the Constitution of their Empire, sovereign power is to be deemed in point of theory to reside.

After long wanderings through many fields of speculation, as well as many a hard-fought fight, all civilized nations have come back to the point from which the Romans started twenty centuries ago. All hold, as did the Romans, that sovereign power comes in the last resort from the people, and that whoever exercises it in a State, exercises it by delegation from the people. All also hold that in the internal affairs of a State, power legally sovereign—even if the Constitution subjects it to no limitation—ought to be exercised under those moral restraints which are expected from the enlightened opinion of the best citizens, and which earlier thinkers recognized under the name of Natural Law. The sphere in which no Sovereignty de iure exists, that of international relations, where all power is de facto only, is also the sphere in which morality has made least progress, and in which justice and honour are least regarded.

Note.

The above article was written, now a good many years ago (though it has been revised subsequently), when I had not before me some writings on the subject of Sovereignty, to which a brief reference ought to be made. First among them comes Sir H. Maine. Two lectures (in the volume entitled the Early History of Institutions) contain an ingenious criticism of the system of Bentham and Austin. This criticism would now command general assent, yet Maine suddenly stops short of the conclusions one would naturally expect. He points out so clearly that most of the propositions of Austin are either unreal or self-evident, that one is inclined to fancy that the praise he nevertheless bestows is due more to respect for the destructive work which he holds Bentham and Austin to have done than to a belief in the substantial value of their doctrines. Mr. F. Harrison, in an article published in the Fortnightly Review some time afterwards, has a very interesting discussion of these two lectures, and of the Austinian theory, which he also condemns in substance, while handling it tenderly, and holding it to be serviceable as bracing to the reader’s mind. Mr. D. G. Ritchie (now professor at the University of St. Andrew’s), in an article on ‘The Conception of Sovereignty,’ in the Annals of the American Academy of Political and Social Science for January, 1891, criticizes the Austinian view more stringently, and makes many acute remarks, with most of which I find myself in agreement. Mr. Henry Sidgwick devotes a chapter in his Science of Politics to the topic, and subjects the notion that Sovereign Power is absolute and irresponsible to a penetrating and suggestive analysis. Sir F. Pollock discusses the question in his Introduction to the Science of Politics, and shows very clearly the unsoundness of the Austinian view. Finally, Mr. C. E. Merriam, junior, in his History of the Theory of Sovereignty since Rousseau, has presented a full and useful account of the chief doctrines put forward on the subject, not stating a theory of his own, but adding pertinent criticisms on the views which he summarizes.

[1 ]The heads of monasteries seem to have been sometimes familiarly described as Sovereigns in the Middle Ages. The name Sovereign was down till very recent times used to describe the head of a municipality in several Irish boroughs. Probably other similar instances might be collected.

[1 ]This seems to be the case in Spain. Some of the republics of antiquity professed to have unchangeable laws, but few, if any, of these fully answered to the conception of a Rigid Constitution as we understand it. See Essay III, p. 124.

[2 ]I pass by the sense in which it is applied to the person of a monarch, whether limited or absolute, as the king is in any country called the Sovereign, because that sense is not liable to be confused with the purely legal sense. A Nominal Sovereign need not be, and often is not, either a Legal or a Practical Sovereign.

[1 ]During part of Lewis the Fifteenth’s reign Madame Du Barry might almost have been, and probably was, described as sovereign de facto of France.

[1 ]11 Henry VII, cap. 1.

[1 ]Thus the Constitution of Guatemala directs: ‘Esta Constitucion no perderá su fuerza y vigor auncuando por alguna rebelion se interrumpa su observancia.’ I take this instance from the book of M. Ch. Borgeaud, Êtablissement et Révision des Constitutions, p. 236.

[1 ]As to the Senate’s right of legislation, see Essay XIV, p. 716.

[1 ]At one moment, after the death of Caligula, it was proposed in the Senate to set to work anew the republican constitution, which had never been formally superseded.

[1 ]Dig. I. 3, 32, § 1 (cf. Inst. i. 2, 11). In the Institutes of Justinian the Emperor’s legislative power, though complete, is still grounded on a delegation formerly made by the people.

[2 ]They frequently altered the language of the old jurists to make it suit their own time, so it is the more noteworthy that the ancient terms have in this instance not been altered.

[1 ]See as to the distinction between that part of the Law of God which is also the Law of Nature and other parts thereof, Essay XI, p. 594.

[2 ]Nevertheless the followers of Arnold of Brescia in Rome attempted to claim for the Roman people the right of choosing the Emperor; while there were others who argued that the true representatives of the old Roman people were to be found in the whole Christian community of the Empire.

[1 ]A full and instructive account of this writer’s theories is contained in the admirable book of Professor Otto Gierke, Johannes Althusius und die Entwickelung der naturrechtlichen Staatstheorien, which is a repertory of information regarding mediaeval and post-mediaeval doctrines of the State.

[1 ]Hobbes goes so far as to wish to extinguish the right of private judgement, and deems it part of the duty of the Sovereign to prescribe opinions to his subjects, and in particular to inculcate the true doctrine of Sovereignty.

[1 ]Austin so far feels the difficulty of fitting his theory to the case of tyrannies as to imply that it is to be applied in settled States only. But this is to admit pre tanto the inadequacy of the theory.

[1 ]An Austinian might perhaps say that the Austro-Hungarian monarchy consists of two separate States, with no single Sovereign. But it is unquestionably one State in the eye of international law, and the Delegations have some powers incompatible with the existence of an Austinian sovereign in either half of the monarchy.

[1 ]The position of Bosnia, occupied by Austria but not yet formally severed from the Ottoman Empire, is somewhat different. It may be compared with that of Lothian in the hands of the king of Scots about the end of the tenth century, though in that case there may have been a quasi-feudal relation.

[1 ]Indeed the recognition of the Great Council of the nation as the chief power in the State is still older: though its exclusive supremacy, i.e. its right to interfere with certain branches of the prerogative of one part of it, the Crown, remained long contested.

[2 ]In his Commonwealth of England (published in 1583): ‘All that ever the people of Rome might do, either Centuriatis comitiis or Tributis, the same may be done by the Parliament of England, which representeth and hath the whole power of the realm, both the head and body. For every Englishman is intended to be there present, either in person or by procuration and attorney, of what pre-eminence, state, dignity, or quality soever he be, from the prince (be he King or Queen) to the lowest person of England, and the consent of the Parliament is taken to be every man’s consent.’ See an article by Sir F. Pollock in Harvard Law Review for January, 1895, and his First Book of Jurisprudence, p. 247.