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 superiority 1, 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 legal 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

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.

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