doctrine of delegation, for a time formally expressed in the so-called
_lex de imperio_ passed at the accession of each new Emperor, had become
a mere antiquarian curiosity, no more representing the actual facts than
the language of the Anglican liturgy regarding the Crown represents the
actual condition to-day of the royal prerogative in England. Justinian
and his successors had in the fullest sense of the word complete,
unlimited, and exclusive legal sovereignty; and the people of old Rome,
who are talked of in the _Digest_, by the lawyers of the second and
third centuries, as the source of the Emperor’s powers, were not in A.D.
533, except in a vague _de iure_ sense, actual subjects of Justinian,
being in fact ruled by the Ostrogothic king Athalarich (grandson of the
great Theodorich). But it is noteworthy that the lawyers also assigned
to the people as a whole, entirely apart from any political organization
in any assembly, the right of making law by creating and following a
custom, together with that of repealing a customary law by ceasing to
observe it, _i.e._ by desuetude, and that they justify the existence of
such a right by comparing it with that which the people exercise by
voting in an assembly. ‘What difference,’ says Julian, writing under
Hadrian, ‘does it make whether the people declares its will by voting or
by its practice and acts, seeing that the laws themselves bind us only
because they have been approved by the people[13]?’
-----
Footnote 13:
_Dig._ i. 3. 32, § 1 (cf. _Inst._ i. 2. 11). In the _Institutes_ of
Justinian the Emperor’s legislative power, though complete, is still
grounded on a delegation formerly made by the people.
-----
It need hardly be observed that if Tribonian and the other commissioners
employed by Justinian to condense and arrange the old law had, instead
of inserting in their compilation sentences written three or four
centuries before their own time[14], taken it upon themselves to state
the doctrine of legislative sovereignty as it existed in their own time,
they would not have used the language of the old jurists, language which
even in the time of those jurists represented theory rather than fact,
just as Blackstone’s language about the right of the Crown to ‘veto’
legislation in England represents the practice of a period that had
ended sixty years before. But those who in the Middle Ages studied the
texts of the Roman law cared little and knew less about Roman history,
so that the republican doctrine of popular sovereignty which they found
in the _Digest_ may have had far more authority in their eyes than it
had in those of the contemporaries of Tribonian, to whom it was merely a
pretty antiquarian fiction.
-----
Footnote 14:
They frequently altered the language of the old jurists to make it
suit their own time, so it is the more noteworthy that the ancient
terms have in this instance not been altered.
-----
These were the legal notions of Sovereignty with which the modern world
started—the sharply outlined Sovereignty of an autocratic Emperor, and
the shadowy, suspended, yet in a sense concurrent or at least resumable,
Sovereignty of the People, expressed partly in the recognition of their
right to delegate legislation to the monarch, partly in their continued
exercise of legislation by Custom.
But there was also another influence, born while the autocracy of the
early Emperors was passing from the stage of power _de facto_ into that
of sovereignty _de iure_, which told with no less force upon the minds
of men during the Middle Ages, and also in the later days when a freer
philosophy began to attack the problems of political science. While to
the educated classes in old Rome the Emperor’s legal Sovereignty bore
the guise of a devolution from that of the People, his provincial
subjects, who knew little or nothing of these legal theories, regarded
it as the direct and natural consequence of Conquest. By the general,
probably the universal, law of antiquity, capture in war made the
captured person a slave _de iure_. Much more then does conquest carry
the right of legal command. Conquest is the most direct and emphatic
assertion of _de facto_ supremacy, and as the _de facto_ power of the
Romans covered nearly the whole of the civilized world, maintained
itself without difficulty, and acted on fixed principles in a regular
way, it speedily passed into Legal Right, a right not unwillingly
recognized by those to whom Roman power meant Roman peace. This idea is
happily expressed by Virgil in the line applied to Augustus—
‘Victorque volentes
Per populos dat iura,’
while the suggestion of a divine power encircling the irresistible
conqueror, an idea always familiar to the East, appears in the words
‘viamque adfectat Olympo,’
which complete the passage.
The feeling that the power actually supreme has received divine sanction
by being permitted to prevail, that it has thereby become rightful, and
that it has, because it is rightful, a claim to obedience, is clearly
put in writings which were destined, more than any others, to rule the
minds of men for many centuries to come.
‘Let every soul be subject unto the higher powers. For there is no
power but of (= from) God: the powers that be are ordained of God.
Whosoever therefore resisteth the power, resisteth the ordinance of
God: and they that resist shall receive to themselves damnation
(_lit._ judgement). For rulers are not a terror to good works, but to
the evil. Wilt thou then not be afraid of the power? do that which is
good, and thou shalt have praise of the same; for he is the minister
of God to thee for good. But if thou do that which is evil, be afraid;
for he beareth not the sword in vain: for he is the minister of God, a
revenger to execute wrath upon him that doeth evil’ (Rom. xiii. 1-5).
‘Submit yourselves to every ordinance of man for the Lord’s sake;
whether it be to the Emperor, as supreme, or unto Governors, as unto
them that are sent by him for the punishment of evildoers, and for the
praise of them that do well. For so is the will of God, that with
well-doing ye may put to silence (_lit._ bridle) the ignorance of
foolish men’ (1 Pet. ii. 13-15).
Here the authority of the Emperor is not only recognized as being _de
iure_ because it exists and is irresistible, but is deemed, because it
exists, to have divine sanction, and thus a religious claim on the
obedience of the Christian, while at the same time, in the reference to
the fact that the power of the magistrate is exercised, and is given by
God that it be exercised, for good, there is contained the germ of the
doctrine that the Power may be disobeyed (? resisted) when he acts for
evil; as St. Peter himself is related to have said, ‘We ought to obey
God rather than men’ (Acts v. 29).
These and other similar dicta in the New Testament are not only evidence
of the sentiments of Roman provincials under the earlier Empire, but are
also the doctrines, delivered under the highest authority, from which
mediaeval thought starts. How they are worked out may be seen by
examining the reasonings of Dante in his _De Monarchia_, or, still
better, the political theories of St. Thomas Aquinas. From the fifth to
the sixteenth century whoever asked what was the source of legal
Sovereignty, and what the moral claim of the Sovereign to the obedience
of subjects, would have been answered that God had appointed certain
powers to govern the world, and that it would be a sin to resist His
ordinance. From the eleventh century onwards it was admitted in Western
Christendom, though less cordially in France, Spain, or England than in
Italy and Germany, that there were two Legal Sovereigns, and according
to the view more generally held, each was _de iure_ absolute, the Pope
in spiritual, the Emperor in temporal matters. Both Pope and Emperor
were above all positive secular Law, but subject to the Law of Nature
and the Law of God, these being virtually the same[15]. The power of the
Pope came immediately from God, through the institution of Peter as
chief bishop. The Emperor’s power, almost equally incontestable, had a
double origin. According to the New Testament, that power came from God;
according to the Roman law, it had been delegated by the people, the
ultimate source of civil authority. St. Thomas Aquinas recognizes
sovereignty as originally and primarily vested in the people, hardly
less explicitly than does the Declaration of Independence. These two
views were capable of being combined, and the theory of delegation did
not really reduce the Emperor’s authority, for there was no actual
people capable of recalling the rights delegated[16]. But there was also
another doctrine, according to which the Emperor drew his rights from
the Pope, who crowned him, and who as spiritual Sovereign exercised a
higher jurisdiction, being responsible for the welfare of the Emperor’s
soul. After the days of Pope Gregory the Ninth and the Emperor Frederick
the Second, the doctrine held by nearly all churchmen of the inferiority
of imperial to papal authority damaged the Emperor’s position. It
suffered still more because after those days the Emperor did not rule
_de facto_ outside Germany, and not always even within it. Most jurists,
however, continued to hold that the rights of the successor of Augustus
still existed everywhere _de iure_, though it was admitted that they
consisted only in a sort of over-lordship, which, always ineffective in
practice, became constantly more evanescent in theory. Controversy
continued to rage over the limits to be drawn between them and the
parallel sovereignty of the successor of Peter; and this controversy
produced in the fourteenth century an anti-ecclesiastical movement
represented in literature by such men as Marsilius of Padua and the
English Franciscan William Occam. In those writers one finds the germs
of the doctrine, afterwards famous, which refers the origin of the State
to the free consent of individual men.
-----
Footnote 15:
See as to the distinction between that part of the Law of God which is
also the Law of Nature and other parts thereof, Essay XI, p. 158.
Footnote 16:
Nevertheless the followers of Arnold of Brescia in Rome attempted to
claim for the Roman people the right of choosing the Emperor; while
there were others who argued that the true representatives of the old
Roman people were to be found in the whole Christian community of the
Empire.
-----
In these mediaeval controversies it was assumed throughout and on all
sides that power _de facto_ must follow Sovereignty _de iure_. But this
Sovereignty, although above positive law, being indeed the source of
such law, was deemed to be held subject to the Law of Nature, since it
is a trust from God. However, as it became more and more clear that the
Emperor was ceasing to be an effective ruler, the temporal sovereignty
of local kings was fully admitted, and their rights were based partly on
the providence of God, which had allowed them _de facto_ power, partly
on the feudal relations of lord and vassal, formed by reciprocal
promises of protection on one side, of loyal support on the other.
VI. MODERN THEORIES OF SOVEREIGNTY.
The sixteenth century brought with it four momentous changes, any one of
which would have alone been sufficient to shake the existing fabric of
thought and belief:—
The Emperor died out as universal Sovereign, and became thenceforth
little more than a German monarch, with a titular precedence over other
princes.
The Pope was gravely wounded by a revolt which ended by withdrawing half
Europe from his sway.
The feudal structure of society began to crumble away, and therewith the
power of the Crown in each country grew.
A new spirit of inquiry, sceptical in its tendencies and no longer
deferential to authority, sprang up in Western and Southern Europe.
Thus that traditional doctrine regarding the basis of authority which
had been sufficient for the Middle Ages faded into dimness. Morals began
to be separated from theology, and the outlines of political science to
emerge from feudal law. Men asked what was the basis of a king’s claim
to be obeyed. Did Might give Right? or did Right give Might? What was
Right itself? Were there any, and if so, what, moral or religious
limitations on the powers of a monarch? and if so, did his transgression
of these limitations justify rebellion against him? These were not
purely speculative questions, because the wars of religion, which
brought bodies of subjects into collision with monarchs of a faith
opposed to their own, and the Pope into collision with Protestant
monarchs, raised issues of principle that were momentous, not merely
because they troubled conscientious minds, but also because men felt the
need of guidance and sought for it in some belief which could stimulate
and inspire their action. Kings were everywhere extending their
functions and assuming, more than ever before, the work of legislators,
while at the same time subjects found that new reasons had arisen for
resisting kings. The old theory which deduced the rights of kings from
the grant of authority divinely made to Peter and to Caesar was outworn.
A new explanation of the nature of political society was needed; and
from that time onward new theories of State power began at intervals to
appear.
The particular form taken by the problems which these theories attempted
to solve was determined by the conditions of a time in which the
coherence of nations and states was threatened on the one hand by
religious discord, and on the other by the claims of local magnates as
against the Crown. Hence the aim of thinkers was to discover something
which would secure the unity of the State. They asked, What is it that
holds the State together? Must there not be some supreme Force to
overcome the various forces that in each State make for division? Where
is that Force to be found? Whence comes its title to rule? In what
persons should it be vested? Can it be, or ought it to be, checked?
These thinkers did not approach such questions by an induction from the
facts of actual states, as we should do, but were guided partly by the
dogmas of law and theology which the Middle Ages had bequeathed to them,
partly by abstract theories which their advocacy of kingly authority, or
papal claims, or popular rights, suggested. And this explains why the
Roman Catholic writers, who might have been expected to maintain the
absolute sovereignty of kings for the purpose of crushing out heresy,
are often found defending the rights of the people, and arguing for the
right to revolt against and depose a heretical monarch, such as Henry
the Eighth, or Elizabeth, who had fallen away from obedience to that
ecclesiastical authority whose rights came from the grant to St. Peter.
The first theory, or at least the first which exerted wide influence,
was that of Bodin, a French jurist, whose book, in its earliest form,
was published in 1576. In his view Sovereignty or _Maiestas_ is the
highest power in a State, which is subject to no laws, but is itself the
maker and master of them. It may reside either in one person, which is
the best and normal form, or in a number of persons. But in either case
it is above all law, incapable of limitation or division, and having an
absolute claim to the obedience of all its subjects, irrespective of the
justice or policy of its acts. Hence Bodin rejects all so-called limited
monarchies and restricted governments; and while he calls the
Romano-Germanic Empire of his day not a monarchy but an aristocracy, he
finds in the French monarchy a pure autocracy of the proper type.
Nevertheless even Bodin admits that, in some sort of vague way, the
Sovereign is subject to the Law of God and the Law of Nature, and
conceives that he is therefore bound to perform any contracts he may
make, and to respect the rights of property and of personal freedom.
The boldest and most logically complete counter theory to that of Bodin
came from a younger contemporary of his, the Calvinist Iohannes
Althusius (John Althus or Althaus), who was born in 1557, and died in
1638. Calvin himself, and most theologians of his school, had returned
to the ancient theocratic view that civil power is derived from God,
dwelling especially on Romans viii. 1. Althusius, however, bases the
government of the State on a contract between the people and the ruler,
and proceeds to assert the rights of the former, as the ultimate source
of all power and the only true and permanent depositary of sovereignty,
to depose the ruler and resume the delegated power when he has violated
his duties and transgressed the measure of authority granted to him[17].
-----
Footnote 17:
A full and instructive account of this writer’s theories is contained
in the admirable book of Professor Otto Gierke, _Johannes Althusius
und die Entwickelung der naturrechtlichen Staatstheorien_, which is a
repertory of information regarding mediaeval and post-mediaeval
doctrines of the State.
-----
Nearly a century later than Bodin a scheme, similar to his, but more
thorough-going was propounded by Thomas Hobbes of Malmesbury. This
scheme, contained in the book entitled _Leviathan_ (and in the treatise
_De Cive_), cannot be appreciated without remembering the time when the
book was written, and the circumstances to which it was addressed. So
directly does it contemplate them that it may almost be called a
political pamphlet—gigantic, but a pamphlet. The Civil War was raging.
The supreme power in England was disputed between the King and the House
of Commons. Ecclesiastics, both Episcopalian and Presbyterian, had been
prominent in claiming authority for their religious views, and the
nation was splitting up partly on political, partly on ecclesiastical
lines. Hobbes was equally hostile to all ecclesiastics—to the Anglican
theory of divine right, and to the Presbyterian theory of a covenant of
the people with God. Yet he did not like to base society upon mere
force, because in that he could find no foundation for justice or moral
obligation. Hence he clung to the notion of a contract. But it was a new
kind of contract, which, not being made with the Sovereign, and being
itself irrevocable, can give no ground for insurrection. Seeing disunion
and confusion all around him, and men divided by the pretensions of
jarring authorities, Hobbes conceived that the three things needful were
(1) to find a basis for power which should be permanent and
inexpugnable, (2) to make power one and indivisible, and (3) to make it
absolute and limitless. Perceiving the flaws in the theory, as old (in a
rude form) as the thirteenth century, which founded government on a
compact between Sovereign and People, he bases his Sovereignty on a
covenant of each member of the community with every other member to
surrender all their several rights and powers into the hands of one
Person (or Body), who thereby becomes Sovereign, but as against whom,
seeing that he is not himself a party to the compact, it cannot be
annulled by those who made it, because they made it not with him but
with one another. His authority is therefore permanent and unlimited;
nor is he, like Bodin’s Sovereign, bound by any pre-existing
institutions. As the people have, by anticipation, ratified all his
acts, everything that he does, however harsh, is just, and gives them no
ground for complaint. Indeed his power is justified by the Law of
Nature, because the three fundamental Laws of Nature are (1) that all
men should endeavour to secure peace, (2) that an individual man should
renounce his original rights when the majority will to do so, (3) that
every man should observe the covenants which have been made by him,
including of course this supreme covenant.
Though Hobbes is chiefly concerned with establishing his Sovereign _de
iure_, and making his _de iure_ autocracy complete, he does also
conceive him as enjoying complete _de facto_ power. He could indeed do
no otherwise, for the Sovereign he describes is not an actual Sovereign.
Hobbes does not profess to be analysing existing States, or explaining
existing institutions. He is presenting an ideal State, and arguing that
mankind (and in particular England) will never be rid of their present
troubles until this Absolute Sovereign of his has been installed with a
_de iure_ title so fully recognized that _de facto_ power will follow.
The Civil War had raised grave questions in the _de iure_ sphere, and it
was natural to believe that, were those questions out of the way,
Practical Mastery would accompany Legal Sovereignty. Nor was it so
strange as some may fancy to-day, that a philosopher should doubt the
possibility of securing peace and order under a monarch limited by law,
or indeed under any government consisting of elements so antagonistic as
Crown, Lords, and Commons, were then showing themselves to be. Hobbes is
a thinker of singular clearness and precision. He is cogent in argument,
and adheres to his main propositions with a consistency greater than
Bodin had shown. He sometimes seems more disputatious than
philosophical. But the reader who would judge him fairly must bear in
mind that he is writing with a view to the circumstances of his own
time, delivering his blows now at the Solemn League and Covenant, now at
the Levellers, now at the parliamentary legalists[18].
-----
Footnote 18:
Hobbes goes so far as to wish to extinguish the right of private
judgement, and deems it part of the duty of the Sovereign to prescribe
opinions to his subjects, and in particular to inculcate the true
doctrine of Sovereignty.
-----