doctrine of Sovereignty, taking it over, however, not so much as either
an ideal conception, or a suggestion pointing a way out of civil war,
but rather as embodying the characteristic features of a normal State.
Bentham was a man of extraordinary ingenuity, fertility, and boldness,
but he was sometimes heedless; he lived before the days of what we call
the historical method, and he had a hearty contempt, if not for history,
yet for the legal institutions it had produced, which indeed he thought
mostly wrong. Accordingly, neither the absolutistic proclivities of
Hobbes, nor the inapplicability of the Hobbesian theory to the majority
of existing governments, deterred him from adopting a doctrine which
pleased him by its subjection of vague morality to precise legality, and
by its vigorous assertion of the legal omnipotence of an authority which
a reformer of his drastic type needed for the accomplishment of his
purposes. Bentham therefore had practical reasons for his adhesion to
the scheme of Hobbes, far removed as he was from Hobbes’s notions of the
anarchic State of Nature and the original covenant. But John Austin,
Bentham’s disciple, had less excuse for the use he made of Hobbes’s
speculations. It has been doubted whether he understood Hobbes. However
this may be, he would seem to have misconceived the position in which
Hobbes stood, and to have taken the latter’s argument for an absolute
Sovereign as the best way of constituting authority in a State, as a
philosophical analysis of the nature and essence of authority in a
normal State. Hobbes was the advocate of a scheme intended to cure
actual political evils. Bentham was a practical reformer of the law,
which certainly needed reform. Austin, however, wrote as a jurist,
professing to describe the normal and typical State. He was therefore
bound to have some regard to facts, and to present a theory of the State
which would have explained and correlated the facts, putting them in
their natural and true connexion. Instead of this he has given us a
theory, which is so far from being that of the normal modern State, that
it is applicable to only two kinds of States, those with an omnipotent
legislature, of which the United Kingdom and the late South African
Republic are almost the only examples, and those with an omnipotent
monarch, of which Russia and Montenegro are perhaps the only instances
among civilized countries. In nearly all free countries, except the
United Kingdom, legislatures are now restrained by Rigid constitutions,
so that there is no Sovereign answering the Austinian definition. In all
Muhamadan countries the monarch is legally, as well as practically,
restrained by his inability to change the Sacred Law; so that, even in
those countries where despotism seems at first sight enthroned, the
definition will not work. Even in the application of his own theory to
the United Kingdom, Austin falls into an error which betrays its radical
unsoundness. Though he defines a Sovereign as ‘the determinate superior
who receives habitual obedience from the bulk of a given society’—a
definition which belongs to the _de facto_ sphere and suits a _de facto_
sovereign, but does not touch the _de iure_ sovereign, who may have no
means of enforcing obedience—still it is plain that his eye is chiefly
fixed on law and legal right, and that he assumes that to the person who
enjoys legal right obedience will in fact be rendered. A Greek tyrant,
such as Agathocles at Syracuse, received habitual obedience from the
bulk of the Syracusans; but he was clearly not Sovereign _de iure_[19].
But Austin, when he comes to the United Kingdom, finds his Sovereign not
in Parliament, that is to say, in the Great Council of the Nation
consisting of the Crown, the House of Lords, and the House of Commons,
but in the two former parts of Parliament, along with—not the House of
Commons, but—the qualified electors of the nation! This view is opposed
not only to law, but also to history, which shows that the Great Council
of the Nation has never been deemed to consist of or include ‘trustees’
(as Austin calls them) for the Nation, but to be the Nation itself,
assembled for national purposes, its members being either in their own
right or, as representatives, plenipotentiary, and enjoying, in
contemplation of Law—just as much as did the primitive Folk Mot from
which Parliament has gradually developed—the plenitude of the nation’s
powers. It is moreover opposed to the facts of the case, because the
electors of the country do not legislate, and have no legal means of
legislating. Their consent is not required to the validity of the most
revolutionary Act of Parliament, as the consent of a majority of the
Swiss electors and Cantons is required to a change in the Constitution
of the Helvetic Confederation. A statute might conceivably be passed, of
which five-sixths of the electors notoriously disapproved, and yet it
would be just as good a statute as one against which no voice had been
raised. Parliament may even give itself a competence which the electors
never contemplated, as it did when it passed the Septennial Act.
-----
Footnote 19:
Austin so far feels the difficulty of fitting his theory to the case
of tyrannies as to imply that it is to be applied in settled States
only. But this is to admit _pro tanto_ the inadequacy of the theory.
-----
Some of those who have admitted that Bentham’s and Austin’s theory is
historically indefensible, have sought to excuse its faults on the
ground that we must test theories, not by the facts of nascent
communities, but by those which the fully-grown modern State presents.
But it is in truth quite as inapplicable to most of these modern States
as it is to ruder societies. Take, for instance, the Austro-Hungarian
monarchy. Where, on Austin’s principles, does Sovereignty reside in this
dual State? The ultimate legislative authority, that is to say, the
authority which receives commands from no other authority, but gives
them to others, is to be found in the so-called Delegations, each
composed of thirty members of the Hungarian Parliament, and as many of
the Austrian Reichsrath. But these are themselves chosen by the two
subordinate Parliaments, and must therefore be subordinate to them, if
the British House of Commons is subordinate to the British Electorate.
Moreover, the Delegations can legislate on a few prescribed subjects
only, all other subjects belonging either to the two Parliaments
respectively, or, in the case of Austria, to the legislatures of the
several provinces (_Kronländer_) which make up the Austrian federation,
and the Delegations derive their authority from laws passed by the
Austrian Reichsrath and by the Hungarian Parliament. Where then does
Sovereignty reside? Is it in the authorities which made the
Constitution? The Austrian half of the Monarchy received its
Constitution from five Statutes passed in 1867, which can be changed
only by a two-thirds majority in both Houses of the Reichsrath; the
Hungarian half from the laws of 1848, which the Emperor King agreed to
bring into force in 1867, and which apparently the Parliament, with the
consent of the Monarch, can amend. There is evidently no hope of finding
any one Sovereign, in the sense of the Austinian definition, for this
great and powerful State[20]. Or take the United States, whose
Constitution has become a sort of model for many more recent
confederations. Austin places Sovereignty in the ultimate power which
can alter the Constitution, viz. the people (or peoples)—I use both
phrases to avoid controversy—of the States. But in the first place, the
people (or peoples) of the States are not a body habitually acting. They
did not act at all from 1810 till 1867. They have not acted since 1870.
It was because it was impossible to get them to act that the question of
slavery proved insoluble by constitutional means. Is there not something
unreal and artificial in ascribing Sovereignty to a body which is almost
always in abeyance? Moreover, the majorities by which the Constitution
can legally be amended are very rarely attainable; and when they are not
attainable, there would therefore seem to be no Sovereign at all. And as
regards one point—the equal representation of the States in the Senate,
even a three-fourths majority of States can do nothing against the will
of the State or States proposed to be affected, a further absurd result
of the doctrine. One might pursue the argument by examining the case of
other federations, such as the Germanic Empire, both the old one and the
new one, and show to what strange results these Austinian principles
would lead. But the above illustrations may suffice to indicate the
extreme artificiality of the doctrine that Sovereignty cannot be
divided, as earlier illustrations have shown the inconveniences of
confounding purely legal supremacy with actual mastery.
-----
Footnote 20:
An Austinian might perhaps say that the Austro-Hungarian monarchy
consists of two separate States, with no single Sovereign. But it is
unquestionably one State in the eye of international law, and the
Delegations have some powers incompatible with the existence of an
Austinian sovereign in either half of the monarchy.
-----
Austin denies that there is any difference between a government _de
iure_ and one _de facto_, because Sovereignty _de iure_ must itself
issue from the Sovereign himself, and the same person cannot be both
creature and creator. If this means that the British Parliament and the
Czar, being legally omnipotent cannot be legally controlled, it is an
obvious, but infertile remark, and it conceals the really material fact
that both authorities are obeyed because the long-settled custom or law
of the country has formed the habit of obeying and the notion that it is
a duty to obey. If it means that every Sovereign _de facto_ is also
Sovereign _de iure_, or the converse, it is untrue. Hobbes had a reason
for bringing in obedience as the test of the Sovereign. Bentham and
Austin have not this reason, for they are in the sphere of law, and law
is not concerned with obedience as a fact. The right of a Sovereign to
be obeyed does not to the lawyer rest on Force, for he assumes that
wherever law exists it will make itself prevail.
VII. QUESTIONS REGARDING SOVEREIGNTY LIABLE TO BE CONFOUNDED.
In most of the speculations of the school which traces its origin to
Hobbes, and indeed in some of Hobbes’ critics also, there would seem to
be a confusion of two or more of six different things, viz.:—
1. The conception and definition of legal supremacy.
2. The conception of practical mastery.
3. The historical question as to the origin of the notion of Legal
Right.
4. The historical question as to the origin of organized political
communities in general, and of the habit of obedience therein.
5. The moral obligation on the members of a State to render obedience
to the authorities within it, whether those authorities rule by law
or by force.
6. The moral obligations which bind the holder of power, whether _de
iure_ or _de facto_.
In the hands of Bentham, whom Austin follows, the two last-mentioned
confusions, which exercised men’s minds in the days of Hobbes and Locke,
have disappeared. Bentham has seen, and has stated with admirable
clearness, the line which divides the province of morality from that of
legal obligation.
But he has mixed up the other four, and especially the first two—for it
is rather by implication than by express words that his writings cover
the questions of the historical origin of Right and of the State—in a
way that has clouded the mind of many a student since his time, and has
in particular produced two capital errors, that of regarding Law as
primarily and normally a command, which it certainly was not at first
and is only partially now, and that of denying the legal quality of
Customary Law, which has been in all countries the most fertile, and is
still in some practically the only source of law. This confusion seems
to have been due mainly to two causes. One is the omission of the
followers of Hobbes to pay any regard to the history of States and
Governments, and to perceive that in many stages of their growth the
definitions which may suit a normal modern State are quite inapplicable.
The other is the attempt to find concise and summary definitions and
descriptions which will suit all modern States generally, whatever their
diversities from one another, or (to put the same thing in a different
form) the habit of arbitrarily assuming one kind of modern State to be
the normal State, even though the trend of recent tendency may be away
from that type. The remark of Bacon, that men are prone to assume a
greater uniformity in Nature than in fact exists, and to conceal real
distinctions under identical nomenclature, finds an application in the
moral and political sciences as well as in the sciences we call
physical. This besetting sin of those who frame logical classifications
upon the basis of abstract notions has led the so-called Analytic School
of jurists sometimes to ignore the most material facts, sometimes to
twist their definitions into a sense far removed from the natural
meaning of the words they use.
The truth seems to be that the difficulties which have been supposed to
surround the subject of Sovereignty are largely factitious difficulties,
and spring from the attempts made to answer questions essentially
different by the same terms. Had the qualifying terms _de iure_ or _de
facto_ been added every time the word ‘Sovereignty’ was used, most of
these difficulties would have disappeared. If we take the six questions
just stated, and examine each by itself, there will be nowadays no great
conflict of opinion as to the answer which each ought to receive.
Questions 1 and 2 have been already dealt with. When the qualification
_de iure_ or _de facto_, as the case may be, is in each case added,
there need be no more mystery about either of them.
As regards 3 and 4, _i.e._ the origin of political power, whether _de
facto_ or _de iure_, the reply of history is unequivocal. There never
was and never could have been any social contract in the sense either of
Hobbes or of Rousseau or of any of the other philosophers who have
discovered in such a fact the foundation of organized society. Political
communities, as every one will now admit, grew up of themselves under
the influence of the needs of common defence, of religious belief, of
habit, of the aggregative and imitative instincts of mankind. Law grew
out of custom, and showed itself first, in most races, in the form of
rules for the settlement of disputes, whether regarding property or
regarding the compensation to be made for murder or other personal
injury. It cannot be said that (as a general rule) authority based on
physical force, the form in which Sovereignty _de facto_ is commonly
supposed to have begun, preceded authority _de iure_, for the two have
usually grown up together, custom having in it an element of fear and an
element of moral deference; and in this growth physical force has played
no such predominant part as the school of Hobbes and Austin assign to
it. Just as in the case of each individual man the most important, if
not the largest part of his knowledge is that which he acquired in the
semi-conscious years of childhood, so the chief part of the work of
forming political societies was done by tribes and small city
communities before they began to be conscious that they were forming
institutions under which to live: and the leading conceptions of law and
procedure were definite and potent before the beginnings of that direct
legislation by a Sovereign which is now represented as the normal action
of an organized political body. Nor is the power of the community as a
whole, apart from its titular Sovereign or its representative organs,
extinct to-day. It survives in the vague but irresistible force of
public opinion which controls all those organs.
When we come to the two last of the above questions (5 and 6) we find
that a sharp distinction between Legal Sovereignty and Practical Mastery
makes it easier to solve the problems they raise. Obedience to a ruler
who is Sovereign only _de facto_ and not also _de iure_ is not now
deemed a duty, unless the ruler _de iure_ be powerless, or cannot be
ascertained, in which cases it may be for the general good that the
actual holder of power, even unlawfully obtained, should be supported as
against anarchy or the prospect of civil war. But to our minds power _de
facto_, apart from legal sanction, carries no title to respect. When it
is abused, the good citizen not only may but ought to resist it.
With the Sovereign _de iure_ the case is different. He has a _prima
facie_ claim to obedience, which can be rebutted or disregarded only in
one of three events, (_a_) if he has lost _de facto_ power, and is
therefore unable to perform a Sovereign’s duties, (_b_) if he has, in a
State where his powers are limited, himself so gravely transgressed the
constitution or laws as either legally or morally to forfeit his
Sovereignty, (_c_) if in a State where his powers are not limited by the
Constitution he has so abused his legal power as to become in fact a
Tyrant, a foe to the objects of peace, security, and justice, for which
government exists. In each of these cases it would be now generally held
that the citizen is absolved from his allegiance, and that the sacred
right of insurrection which the French of the Revolution and their
friend Jefferson so highly prized must come into play. In case (_b_) the
proper course would seem to be to resist the _de iure_ Sovereign by
constitutional means, so far as they will go, and only in the last
resort by force. If his transgressions have gone so far as to work
forfeiture of his legal rights, he is of course no longer Sovereign _de
iure_. In case (_c_), where no constitutional remedy exists, the
formerly _de iure_ ruler, since he has made himself a mere Tyrant or
ruler against law, has created a state of war between himself and the
citizens, and opposition to him becomes (as in the case of the mere _de
facto_ tyrant) a duty which is of stronger or weaker obligation
according to the greater or less enormity of his offences, and the
greater or less prospect of success in such opposition.
As respects the moral restraints by which the Sovereign, whether _de
facto_ or _de iure_, ought to hold himself bound, few will now dispute
that they are substantially the same as those which bind an individual
man in the ordinary relations of human life. Each must use his power in
accordance with the general principles of justice and honour, regarding
actual power as a trust from Divine Providence, and legal power as a
trust from the community also. Only in a single point would it seem that
there may be a difference, though one whose limits are difficult to fix
in practice, between the moral duty of a Sovereign and that of an
individual good citizen. Both are equally bound to strict justice,
strict good faith, strict avoidance of cruelty, or even unnecessary
harshness. But while the individual ought often to be not merely just
but also generous, since it is only his own resources which generosity
will impair, it is suggested that the Sovereign has no right to be
generous out of the resources of the community for which he is only a
trustee. Similarly, while the good man may risk his own life to save the
lives of others, the ruler must not risk the life of the community,
because he has not been entrusted with any such power. To this it has
been answered that the Sovereign is entitled to assume that the
community ought to desire and will desire that its powers should be
exercised in the best and highest spirit for the good of its members and
of the world, and that he may upon this assumption do everything which a
high-minded community would do were it consulted. The question, though
seldom a practical one, is both interesting and difficult, for even if
the analogy of trusteeship be admitted, there is room for much
controversy as to the application of the principle in each particular
case.
Some few publicists have argued that the Sovereign Power in a State is
entirely discharged from all moral obligations when it is a question of
preserving the existence of the State itself, and that violence,
injustice, and bad faith then become legitimate expedients. In reply to
such a detestable doctrine, it is enough to observe (first) that as the
Sovereign would be himself the judge of what does involve the life of
the State, he would be sure to abuse his freedom from moral ties in
cases where the supposed justification did not really arise, and that
thus all confidence of one nation in the good faith of another would be
destroyed, and (secondly) that the argument must go so far as to put the
claim of a State to preserve its collective existence higher than that
of the individual to preserve himself from death, for no one will
contend that an individual is justified in killing another man (except
of course in self-defence) or bringing a false charge against him, for
the sake of saving his own life.
This question need not be pursued, because it lies rather outside the
particular subject with which we are here concerned. But a few words may
fitly be said regarding the bearing of the distinction between that
which exists _de iure_ and that which exists _de facto_ on the questions
that have arisen regarding Sovereignty in the international sphere.
VIII. SOVEREIGNTY IN INTERNATIONAL RELATIONS.
In that sphere there is no Law, in the strict modern sense, because no
superior authority capable of adjudicating on disputes and enforcing
rules, and therefore we cannot speak of the Sovereignty of one State
over another State in the same sense in which a Person or Body within a
State may be called Legally Supreme over the subjects. Nevertheless,
where some legal tie has been created between two or more States,
placing one in a lower position, we may say that inferiority exists _de
iure_, while if there is merely an actual and continuing disposition of
the weaker one to comply with the wishes of the stronger, there is
inferiority _de facto_. Where the laws made by the legislative authority
of one State directly bind the subjects of another State, the latter
State cannot be called in any sense Sovereign. But between this case and
that of absolute independence there are several grades of what may be
called semi-Sovereignty, or (perhaps more correctly) imperfect
Sovereignty. The dependent State, though not amenable to the laws or
courts of the superior one, may have no right to hold diplomatic
relations with other States, or may, though entitled to send and receive
envoys, have bound itself by a treaty with the superior State to submit
for the approval of the latter any treaty it may conclude. Or again, it
may have formally accepted the protection of the superior State, or have
undertaken to receive its executive head from the latter, or to pay
tribute to the latter. In all such cases the tie duly formed between the
superior and inferior State, and notified to other States, is a fact of
high diplomatic moment in determining the international status of the
inferior State. Other States are bound by international usage to take
note of the fact, and for one of them to attempt to send an ambassador
to, or make a treaty with, an inferior State which had bound itself to a
superior State in the way above indicated, would constitute a grave
breach of comity—would be treated as what diplomatists call ‘an
unfriendly act.’ Although, therefore, there is no Law, in the strict
sense of the word, binding these inferior States, but only a Contract,
still they may appropriately be said to be _de iure_ dependent, or
imperfectly sovereign. The world is full of them. There are a great many
in India, bound to the British Crown by engagements which make them more
or less subject to British control. Rumania and Servia were formerly in
this position. There is one left in South-Eastern Europe, Bulgaria,
although the tie binding it to the Turkish Sultan is wearing very
thin[21]. Bulgaria is not precluded from sending envoys and making
treaties. There is one in North Africa—Tunis—which is now, in all but
name and legal intendment, a province of France. Another African case,
that of the late South African Republic, which, though it could accredit
and receive envoys, was liable to have any treaty made by it (except
with its neighbour republic) disapproved by Great Britain, has given
rise to much controversy. Probably it should not have been called either
an internationally Sovereign State, or a Dependent State, but rather a
State dependent for one particular purpose and independent for others.
The position of Egypt—which is _de iure_ part of the Ottoman Empire for
some purposes, is also _de iure_ (for certain other purposes) under the
control of six European Powers, and is _de facto_ under the control of
one of those six—is a very peculiar one. The varieties of relation in
which one State may legally stand to another are indeed endless, and
elude any broad classification.
-----
Footnote 21:
The position of Bosnia, occupied by Austria but not yet formally
severed from the Ottoman Empire, is somewhat different. It may be
compared with that of Lothian in the hands of the king of Scots about
the end of the tenth century, though in that case there may have been
a quasi-feudal relation.
-----
Quite different from these cases are those in which a State, though
practically dependent on another State, has contracted no public
engagement which affects her theoretical independence. In such cases,
third parties (_i.e._ States) are not _prima facie_ bound (by
international usage and comity) to pay any regard to the fact that the
inferior State is _de facto_ dependent. They may properly treat it as
being completely Sovereign. But just as there are some cases in which a
_de facto_ Sovereign becomes morally entitled to obedience from the
citizens of a community, so there are some extreme cases in which a
State, while technically independent, is notoriously so much _de facto_
under the protection and control of a stronger State that it would be
improper for third parties to ignore the actual relation. England
(strictly speaking) has no legal control over Afghanistan or Nepal, and
had none over independent Burma down to 1885, but Burma was annexed
because it toyed with France, and any negotiations by a third power with
Afghanistan or Nepal would be resented by England. Persia may possibly
sink into a similar position as regards Russia.
IX. SOVEREIGNTY IN A FEDERATION.