often get quite out of sight of his starting-point, the ‘standard
authority;’ but he will not on that account be lost. The fact is,
that all literature teems with suggestions on this topic of politics.
Just as the chance news item, the unstudied traveller’s reminiscence,
the passing social or financial scandal,[A] and every hint of any
present contact of men with law or authority, illuminates directly,
or by inference, the institutions of our own day, similar random rays
thrown across the pages of old books by the unpremeditated words of
writers quite guiltless of such instructive intent may light up, for
those who are alert to see such things, the most intimate secrets of
state. If it be beyond hoping for to find a _whole_ Greville for every
age of government, there may be found Grevillian scraps, at least, in
the literature of almost every time. From men as far back and as well
remembered as Cicero, down to men as recent and as easily forgotten
as several who might be named, politicians have loved to explain to
posterity the part they took in conspicuous affairs; and that portion
of posterity which studies politics by inference ought to be profoundly
thankful to them for yielding to the taste.
[A] Did not the Dilke trial in London, for instance, help us to
understand at least one influence that may sometimes make a
lawyer Home Secretary?
Approach the life of States by such avenues, and you shall be convinced
of the organic nature of political society. View society from what
point you will, you always catch sight of some part of government; man
is so truly a ‘political animal’ that you cannot examine him at all
without seeing the points--points of his very structure--whereat he
touches and depends upon, or upholds, the State.
In 1850, while Governor-General of Canada, Lord Elgin writes to Lord
Grey:
“Our Reciprocity measure was pressed by us in Washington last
session, just as a railway bill, in 1845 or 1846, would have been
passed in Parliament. There was no Government to deal with, ...
it was all a matter of canvassing this member of Congress or the
other.”[B]
[B] Letters and Journals of Lord Elgin, p. 121.
What? “No Government to deal with?” Here’s a central truth to be
found in none of the ‘standard authorities,’ and yet to be seen by a
practised diplomatist all the way from Canada. About the same date
M. Bacourt came to this country to represent the French Government
and be made wretched by the crude deportment of the Americans. His
chief concern was to get away to some country where people were less
unconventionally at their ease in drawing-rooms; but he turned, when
necessary, to the business of his legation; and whenever he did so
he found that “here diplomatic affairs are not treated as everywhere
else, where we communicate with the Minister of Foreign Affairs and
arrange the matter with him alone.” He must ‘arrange’ the matter with
several committees of Congress. He must go to see Mrs. Kennedy and Mrs.
Winthrop, whose “husbands are members of the House of Representatives,
and on the committee having charge of commercial affairs, in which”
he “is interested,” for “they say that these gentlemen are very
particular about visits from foreign ministers to their wives.”[C] Just
Lord Elgin’s testimony. Again the ‘standard authorities’ are added
to, and that in a quarter where we should least expect to find them
supplemented. We need despair of no source.
[C] Souvenirs of a Diplomat, pp. 189, 281.
These are only near and easily recognized illustrations of the errant
mode of study I am expounding and advocating. Other systems besides our
own receive similar chance illumination in the odd corners of all sorts
of books. Now and again you strike mines like the “Mémoires of Madame
de Rémusat,” the “Letters” of Walpole, or the “Diary” of a Pepys or an
Evelyn; at other periods you must be content to find only slender veins
of the ore of familiar observation and intimate knowledge of affairs
for which you are delving; but your search will seldom be altogether
futile. Some newly opened archive office may offer _cahiers_, such as
revealed to de Tocqueville, more than all other records, the _ancien
régime_. Some elder Hamerton may tell you of the significant things
to be seen ‘round his house.’ All correspondence and autobiography
will repay perusal, even when not so soaked in affairs as the letters
of Cromwell, or so reminiscent of politics as the “Memoirs of Samuel
Romilly.”
Politics is the life of the State, and nothing which illustrates that
life, nothing which reveals any habit contracted by man as a political
animal, comes amiss in the study of politics. Public law is the formal
basis of the political life of society, but it is not always an
expression of its vital principle. We are inclined, oftentimes, to take
laws and constitutions too seriously, to put implicit faith in their
professions without examining their conduct. Do they affect to advance
liberty, for instance? We ought to go, in person or in imagination,
amongst the people whom they command, and see for ourselves whether
those people enjoy liberty. With reference to laws and constitutions of
our own day, we can learn such things best by supplementing books and
study by travel and observation. The best-taught class in modern public
law would be a travelling class. Other times than our own we must
perforce be content to see through other men’s eyes.
In other words, statute books and legal commentaries are all very well
in the study of politics, if only you quite thoroughly understand that
they furnish only the crude body-colors for your picture of the State’s
life, upon which all your finer luminous and atmospheric effects are
afterwards to be worked. It is high time to recognize the fact that
politics can be effectually expounded only by means of the highest
literary methods. Only master workers in language and in the grouping
and interpretation of heterogeneous materials can achieve the highest
success in making real _in words_ the complex life of States. If I
might act as the interpreter of the new-school economists of whom I
have already spoken, I trust with due reverence, I should say that this
is the thought which, despite their too frequent practical contempt
for artistic literary form, is possessing them. John Stuart Mill and
Ricardo made a sort of logic of political economy; in order to simplify
their processes, they deliberately stripped man of all motives save
self-interest alone, and the result was evidently ‘_doctrinaire_’--was
not a picture of life, but a theorem of trade. Hence “the most dismal
of all sciences;” hence Sidney Smith’s exhortation to his friend not
to touch the hard, unnatural thing. The new-school economists revolt,
and say they want “a more scientific method.” What they really want
is a higher literary method. They want to take account of how a man’s
wife affects his trade, how his children stiffen his prudence, how
his prejudices condition his enterprise, how his lack of imagination
limits his market, how strongly love of home holds him back from the
good wages that might be had by emigration, how despotically the
opinion of his neighbors forbids his insisting upon a cash business,
how his position in local society prescribes the commodities he is
_not_ to deal in; in brief, how men actually do labor, plan, and get
gain. They are, therefore, portentously busy amassing particulars about
the occupations, the habits, the earnings, the whole economic life of
all classes and conditions of men. But these things are only the raw
material of poetry and the literary art, and without the intervention
of literary art must remain raw material. To make anything of them, the
economist must become a literary artist and bring his discoveries home
to our imaginations--make these innumerable details of his pour in a
concentrated fire upon the central citadels of men’s understandings. A
single step or two would then bring him within full sight of the longed
for time when political economy is to dominate legislation.
It has fallen out that, by turning its thoughts toward becoming a
science, politics, like political economy, has joined its literature
to those books of _natural_ science which boast a brief authority, and
then make way for what is ‘latest.’ Unless it be of the constitution
of those rare books which mark an epoch in scientific thought, a
‘scientific work’ may not expect to outlive the prevailing fashion in
ladies’ wraps. But books on politics are in the wrong company when
they associate with works among which so high a rate of mortality
obtains. The ‘science’ proper to them, as distinguished from that
which is proper to the company they now affect, is a science whose
very expositions are as deathless as itself. It is the science of the
life of man in society. Nothing which elucidates that life ought
to be reckoned foreign to its art; and no true picture of that life
can ever perish out of literature. Ripe scholarship in history and
jurisprudence is not more indispensable to the student of politics
than are a constructive imagination and a poet’s eye for the detail of
human incident. The heart of his task is insight and interpretation; no
literary power that he can bring to bear upon it will be greater than
he needs. Arthur Young’s way of observing, Bagehot’s way of writing,
and Burke’s way of philosophizing would make an ideal combination for
the work he has to do. His materials are often of the most illusive
sort, the problems which he has to solve are always of the most
confounding magnitude and variety.
It is easy for him to say, for instance, that the political
institutions of one country will not suit another country; but how
infinitely difficult is it to answer the monosyllables How? and Why? To
reply to the Why he must make out all the contrasts in the histories
of the two countries. But it depends entirely upon what sort of eye he
has whether those contrasts will contain for him vital causes of the
effect he is seeking to expound. He may let some anecdote escape him
which gleams with the very spark needed to kindle his exposition. In
looking only for grave political facts he may overlook some apparently
trivial outlying detail which contains the very secret he would guess.
He may neglect to notice what men are most talked about by the people;
whose photographs are most frequently to be seen on the walls of
peasant cottages; what books are oftenest on their shelves. Intent
upon intrigue and legislation, he may pass over with only a laugh some
piquant gossip about legislator or courtier without the least suspicion
that it epitomizes a whole scheme of government. He may admire
self-government so much as to forget that it is a very coarse, homely
thing when alive, and so may really never know anything valuable about
it. The man who thinks the polls disagreeable and uninteresting places
has no business taking up a pen to write about government. The man who
despises the sheriff because he is coarse and uncouth, and who studies
the sheriff’s functions only from the drawing-room or the library,
will realize the life of government no better than he realizes the
vanity of ‘good form.’
If politics were to be studied as a great department of human conduct,
not to be understood by a scholar who is not also a man of the
world, its literature might be made as imperishable as that of the
imagination. There might then enter into it that individuality which
is immortality. That personal equation which constitutes the power of
all books which have aught of force in them would then rescue books on
politics from the dismal category of ‘treatises,’ and exalt them to
the patriciate of literature. The needed reaction against the still
‘orthodox’ methods of discoursing upon laws and constitutions, like
that already set afoot against the ‘orthodox’ political economists,
should be a ‘literary movement’--a movement from formalism to life.
In order really to know anything about government, you must _see it
alive_; and the object of the writer on politics should be nothing less
than this, to paint government to the life, to make it live again upon
his page.
III
POLITICAL SOVEREIGNTY
The conception of political sovereignty is one of those interesting
portions of doctrine which belong in common to several distinct
branches of study. No systematic discussion of any part of the science
of politics can advance very far without it; and it is even more
indispensable to the student of legal systems than to the student of
politics. It is a question central to the life of states and to the
validity of law.
And it is rendered the more interesting by the fact that it is a
critical question, used by all schools alike as a capital test of
orthodoxy. No man who cares a whit about his standing among students of
law or of politics can afford to approach it lightly. Whatever he says
about it he must needs say with a profound sense of responsibility. He
must undertake the discussion of it with the same sort of gravity,
with the same deep sense of personal risk, that the political economist
evinces when he ventures an opinion about Value or hazards a theory
of Distribution. When once he has committed himself to an opinion
concerning it, he may be sure that with a large and influential number
of his fellow-students he can never thereafter pass for a man of
undoubted scholarship or unclouded sense.
If it is awkward, under such circumstances, that the conception should
be so indispensable, it doubtless has the advantage of forcing boldness
upon us. If for nothing else than for the sake of a _modus vivendi_, we
must out with whatever notion it is that we have accepted or invented
with reference to the nature and lodgement of sovereignty. It is, on
the whole, safer to be explicit than to hedge.
And yet it is not easy to be explicit; for there are no suitable terms
to be explicit with. One no sooner begins to examine the field and
the matter of controversy than he begins to suspect that it is all a
question of terminology. After being hurried in bewilderment through
one of Browning’s short poems without being permitted to be quite sure
at any point of the full meaning, we are led in our disappointment
to wonder, with Mr. Birrell, if it can be the punctuation. In what
we read of sovereignty we are led to wonder if it can be the _words_
that confuse us. It must be evident to every one who has not been
sophisticated by the terms themselves, or committed beyond retrieval by
the controversial use of them, that when, for example, the people of
the United States and the Czar of Russia are put together in the same
class as sovereigns, language has been forced to a very artificial use,
and one term made to cover radically different things. There is clearly
a striking contrast between these two sovereigns, in character, in
method, and in power. Doubtless an excellent way by which to enter our
subject would be through an examination of this difference. But another
way is more direct.
Let us begin with an accepted definition of sovereignty. It is
both decent and convenient to take that of Austin, that celebrated
definition which he received through Bentham from Hobbes. Austin
conceived a sovereign very concretely, as a person or body of persons
existing in an independent political society and accorded the habitual
obedience of the bulk of the members of that society, while itself
subordinate to no political superior. Law he defined to be the explicit
or implicit command of such a person or body of persons, addressed to
the members of the community, its inferiors or subjects. He took it for
granted that in every independent community supreme political authority
did actually vest in some such determinate sovereign person or body of
persons.
By the very term used to describe it, moreover, this sovereignty
is supremacy--is subject to no limitation. Every law is a command,
not only, but the command of a supreme authority; and it would be a
singular contradiction in terms to speak of this supreme power as
limited by law. How can the supreme author of law within a state
himself be subject to law: how can the creature bind the creator?
How can one refrain from smiling at the logical incapacity of those
who speak of limitations to sovereignty, or, more absurdly still, of
divisions of sovereignty? Is there a hierarchy of supremacies: can
there be a co-ordination of creators?
Austin had studied in Bonn while it was the residence of such men as
Niebuhr, Schlegel, Arndt, Welcher, Mackeldey, and Heffter, and at a
period when controversy touching some of the fundamental questions
concerning the province and method of jurisprudence was in its keen
youth. His thought was mature, indeed, before he went abroad, and
nature had very imperatively commanded of what sort that thought
should be by giving him a mind framed for abstract conception and
sharp logical processes; but contact with German thinking contributed
many important elements to his mental equipment. Thibaut became
scarcely less his master than Bentham. It was inevitable that it
should be Thibaut rather than Savigny. Savigny believed that all
law was rooted in old habit, and that legislation could modify law
successfully and beneficially only by consenting to the secondary
_rôle_ of supplementing, formulating, or at most guiding custom. He
was at weapons drawn with the school of Thibaut, which proposed to
lay legislative hands on the entire body of German law, make a code
which should be common to all the German States, and so help to make
Germany a national unit. To attempt thus to systematize law, where by
natural development it was unsystematic, seemed to Savigny a deliberate
effort to render it artificial. Law, he maintained, did not often
grow into a logical system, but was the product of daily accretions
of habit and sluggish formations of thought, which followed no system
of philosophy. It was not the business of legal science to force it
into logical categories; it was its function, rather, to give a clear
explanation of the principles and order of its life and a satisfactory
working analysis of its several parts and conceptions. Thibaut, on the
other hand, believed it to be the legitimate function of the jurist to
make piecemeal law up into organic wholes, rendering it clear where it
had been obscure, correcting its inconsistencies, trimming away its
irregularities, reducing the number of its exceptional provisions,
discovering and filling in its gaps, running it through with threads
of system, giving it elegance of style and completeness of method.
He thought it possible to change law from a system of habits into a
system of commands. These were, of course, the ideas which were most
attractive, most congenial, to the mind of Austin.
But, however natural such conceptions may have been to Austin, it
must certainly be regarded as singular that, although rejected on
the Continent, where sovereignty had throughout the most important
formative periods of European history been quite unequivocally lodged
in unmistakable sovereigns, these notions should have been accepted in
England, the land where law had been least subject to doctrine, most
observant of times and circumstances, most piecemeal in its manner of
construction, least like a set of commands, and most like a set of
habits and conventions. Doubtless we are to remember, however, that
the feudal theory of law had long been held with perfect confidence by
English lawyers in calm despite of fact. Probably it is true that the
English mind (our own), with its practical habit, likes nice systems
well enough because of their appearance of completeness, has a sense of
order which enjoys logic, without having any curiosity or capacity for
the examination of premises. The Englishman has always been found ready
to accept, from those who had the leisure to amuse themselves in that
way, interesting explanations of his institutions which did not at all
fit the actual facts. It has caused him no inconvenience, for he has
not perceived the lack of adjustment between his actual transactions
and the theory he has accepted concerning them. He has, of course, not
troubled himself to alter his institutions to suit his philosophy. That
philosophy satisfied his thought and inconvenienced neither Parliament
nor the law courts. And so he had no doubt Austin was right.
Austin’s logic is unrelenting, and the loyalty of his followers
unflinching. Sir Henry Maine having shown that throughout the greater
part of history the world has been full of independent political
societies possessing no law-making sovereign at all, and it having
become notorious that legislation has everywhere played a late and
comparatively subordinate part in the production of law, the latest
writers of the Austinian school have reduced jurisprudence to a merely
formal science, professing to care nothing for the actual manner in
which law may originate, nothing even for most of the motives which
induce men to obey law, provided you will but concede that there is,
among a great many other imperative motives, one which is universally
operative, namely, the fear of the compulsion of physical force, and
that there is at least one sovereign function, namely, the application
of that physical force in the carrying out of the law. They ask to be
allowed to confine themselves to such a definition of positive law as
will limit it to “rules which are _enforced_ by a political superior in
his capacity as such.” They take for their province only a systematic
description of the forms and method “of the influence of government
upon human conduct” through the operation of law. They thus virtually
abandon the attempt to find any universal doctrines respecting the
_rôle_ of government as a _maker_ of laws. For them government is not
a creative agent, but only an instrumentality for the effectuation of
legal rules already in existence. So hard is the principle of life
to get at that they give over all attempts to find it, and, turning
away from the larger topics of the biology, restrict themselves to the
morphology, of law.
When it came to pointing out the body of persons with which sovereignty
was lodged in particular states of complex constitutional structure,
Austin was sometimes very unsatisfactory. Sovereignty is lodged in
England, he says, in the king, the peers, and--_not_ the House of
Commons, but--the electorate. For he holds the House of Commons to be
merely a trustee of the electors, notwithstanding the fact that the
electors exercise their right of franchise under laws which Parliament
itself enacted and may change. In the United States he “believes” it to
be lodged “in the States’ governments, as forming an aggregate body;”
and he explains that by the government of a State he does not mean its
“ordinary legislature, but the body of its citizens which appoints
its ordinary legislature, and which, the Union apart, is properly
sovereign therein.” Apparently he is led thus to go back of the House
of Commons and the legislatures of our States to the electorates by
which they are chosen, because of his conception of sovereignty as
_unlimited_. If he stopped short of the electors, some part of his
sovereign body would be subject to political superiors. If he were to
go beyond the electors, to the larger body of the people--to the women
and the children and the men who cannot vote--he would come upon, not a
“determinate,” but an indeterminate body of persons.