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].
-----
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.
-----
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.
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_ king[9]. 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.
-----
Footnote 9:
11 Henry VII, cap. 1.
-----
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 A.D., 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
force[10]. 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.
-----
Footnote 10:
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, _Établissement et Révision des Constitutions_, p. 236.
-----
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:—
When Sovereignty _de iure_ attains its maximum of quiescence,
Sovereignty _de facto_ is usually also steady, and is, so to speak,
hidden behind it.
When Sovereignty _de iure_ is uncertain, Sovereignty _de facto_ tends
to be disturbed.
When Sovereignty _de facto_ is stable, Sovereignty _de iure_, though
it may have been lost for a time, reappears, and ultimately becomes
stable.
When Sovereignty _de facto_ is disturbed, Sovereignty _de iure_ is
threatened.
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.
Legal Sovereignty exists in the sphere of Law: it belongs to him who
can demand obedience as of Right.
Practical Sovereignty exists in the sphere of Fact: it is the power
which receives and can by the strong arm enforce obedience.
The Legal Sovereign in any State is ascertained by determining the
Person (or Body) to whom the law assigns in the last resort the
right of issuing general rules or special orders, or of doing acts
without incurring liability therefor.
The Practical Sovereign is ascertained by determining who is the
Person (or Body) whose will in the last resort prevails (or in case
of conflict, will be likely to prevail) against all other wills.
Legal Sovereignty does not depend upon the obedience actually
rendered; for the law assumes obedience to be always enforceable.
Obedience paid is not a note characterizing the Legal Sovereign, but
a Postulate of his existence. That the Legal Sovereign does in fact
exercise his rights under the influence of another person (or body)
makes no difference. He is none the less a Legal Sovereign. A Mikado
is Legal Sovereign though the Shogun may rule in his name. Thus
Legal Sovereignty is Formal, not Material.
Legal Sovereignty is Divisible: _i.e._ different branches of it may be
concurrently vested in different Persons (or Bodies), co-ordinate
altogether (Pope and Emperor), or co-ordinate partially only
(President and Congress), though acting in different spheres.
Practical Sovereignty seems indivisible, for by its definition it can
belong to one Person (or Body) only, viz. that which is actually the
strongest (though perhaps not known to be the strongest) in the
State. But it may be so far divided that men obey one ruler in one
sphere of action and another in another sphere. In the fourteenth
century, for instance, all Christians obeyed the Pope in spiritual
matters, their secular government in temporal, and this whether the
latter was only _de facto_ or also _de iure_. There might of course
be much dispute as to what were spiritual matters, but no one denied
that in matters which were really spiritual the Church alone should
be obeyed.
Legal Sovereignty may be Limited, _i.e._ the law of any given State
may not have allotted to any one Person (or Body), or to all the
Persons (or Bodies) taken together, who enjoys (or enjoy) supreme
legislative (or executive) power, the right to legislate, or to
issue special orders, on every subject whatever. That is to say,
some subjects may be reserved to the whole People, or may be
declared unsusceptible of being legislated on at all, even by the
whole people. If there be a reservation to the people of an ultimate
decision on all subjects, as for instance by way of constant
Referendum, the people and not the legislature may be the true Legal
Sovereign. But a right reserved to the people of qualified
interference, or of altering the powers of the Legislature from time
to time, does not of itself deprive the legislature of legal
sovereignty.
Practical Sovereignty is, by definition, incapable of being limited
(for Law has nothing to do with it), though the exercise of it by
its possessor may be restrained by the fear of consequences.
Although Legal and Practical Sovereignty are distinct conceptions,
belonging to different spheres, they are in so far related that—
Legal Authority is a potent factor in creating Practical Mastery.
Practical Mastery usually ripens, after a certain time, into Legal
Authority.
Thus—
In an orderly State, the respect for Legal Sovereignty keeps questions
of Practical Sovereignty in abeyance.
In a disorderly State, conflicts regarding Practical Sovereignty
weaken and ultimately destroy the respect for Legal Sovereignty.
To which we may add, with a view to questions to be discussed presently—
Questions of the Moral Rights conferred and the Moral Duties imposed
by Sovereignty, whether Legal or Practical, belong to a different
province from that in which the determination of the nature of
either kind of Sovereignty lies. Such questions are however in so
far related to these two that—
Legal Sovereignty carries with it a _prima facie_ moral claim to the
obedience of all citizens;
Practical Sovereignty carries with it no further moral claim to
obedience than such as arises from the fact that a useless
resistance to superior physical force tends to breaches of the peace
and to suffering which might be spared.
In both cases it may be the duty of the citizen, where some higher
moral interest than that of avoiding breaches of the peace is
involved, to resist either the Legal or the Practical Sovereign.
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 matters[11].
-----
Footnote 11:
As to the Senate’s right of legislation, see Essay XIV, p. 304.
-----
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 arrangement[12].
-----
Footnote 12:
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.
-----