Chapter 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 it[22]. 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-day[23]. 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.

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Footnote 22:

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.

Footnote 23:

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.

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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.

XI

THE LAW OF NATURE