Chapter 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 lawyers[7]. 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.

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Footnote 7:

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.

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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 sovereign[8].

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Footnote 8:

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.

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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 (A.D. 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.