the nature of Sovereignty, and a certain tendency to confuse the spheres
of _de iure_ and _de facto_, produce difficulties. It is the case of
communities uniting themselves in a Federation, and resigning to it a
part of their self-government, and either a part or the whole of their
Sovereignty. There have been several such instances, but it will be
sufficient to examine one.
When the thirteen semi-independent States—semi-independent because they
had parted with some of their powers by the instrument of confederation
of 1776—that lay along the Atlantic coast of North America adopted
(between 1787 and 1791) the newly drafted Constitution of the Union,
they neither expressly reserved nor expressly disclaimed the right to
withdraw from it and resume their previous condition. Questions
presently arose as to the right of a State to treat as null any act of
the Federal legislature which she deemed to go beyond the powers
conferred upon it by the Constitution, and ultimately as to her right to
withdraw altogether from the Union. In the discussions of these points
much stress was laid on the sovereignty which the several States had (so
it was urged) originally possessed, which they had never in terms
renounced, and which the Eleventh Amendment to the Federal Constitution
had, when it declared that no State could be sued by a private person,
virtually admitted.
The earlier statesmen, such as Hamilton and Madison, held that
Sovereignty was by the Constitution divided between the Nation, acting
through Congress and the President, and the States. This was all the
more natural, because both the National and the State organs of
government were agents of the people, from whom it was admitted that all
powers had come, and in whom, therefore, ultimate Sovereignty must lie,
though whether in the people as one whole, or in the several peoples of
the several States, was another question. But the publicists of the next
generation, who on each side led the contest over slavery, refused to
acquiesce in any doctrine of division. Like Bodin, Hobbes, Bentham, and
other Europeans, they proclaimed Sovereignty indivisible; but while the
Northern men found it in the Nation as a whole, the Southerners, led by
Calhoun, insisted that it remained in the several States, suspended or
temporarily qualified, but capable of resuming its former proportions in
each State whenever that State should quit the Union.
On these questions, which were treated as questions of pure law, there
was immense debate—acute, learned, passionate, and such debate might
have gone on for ever; for each side had a perfectly arguable case, the
point being one which the Constitution had (perhaps intentionally)
evaded. The term Sovereignty acquired to the disputants a sort of mystic
meaning, and many forgot that while the respective rights of the nation
and the States were _de iure_ the same in 1860 as they had been in 1791,
a new state of things had in fact grown up, which the old _de iure_
conception did not suit. Controversy there would in any case have been,
but the controversy was greatly darkened by the metaphysical character
which the use of the abstract term Sovereignty imparted to it; and which
helped to conceal the momentous change which the political conditions of
the country had undergone.
The moral of a concrete case like this is the same as that suggested by
a study of the errors of the modern followers of Hobbes. Hobbes seems to
assume that his Sovereign _de iure_ will be also Sovereign _de facto_.
Austin cannot admit any one to be a Sovereign who is not so both _de
iure_ and _de facto_. The lawyers on both sides in America grew so hot
over their legal controversy as to forget the incompetence of law to
deal with certain classes of questions. They ignored history, and got
too far away from facts. In the sphere of pure law political facts need
not be regarded, for Law assumes that while it remains law its decisions
will be accepted. But when it is attempted to transfer the principles
and conclusions of law to the sphere of controversies in which not only
vast interests, but also violent passions are engaged, there is danger
that the law may turn out not to have been made for the new facts and
not to be capable of dealing with them, so that efforts to apply it to
them will not carry the full moral weight which law ought to exert. That
each party should have a plausible legal case makes the risk of conflict
greater, because men think themselves justified in resorting to force to
defend their legal case, whereas if they left law out of the matter,
they might be more willing to consider their chances of practical
success, and therefore more ready to accept a compromise. What is deemed
a good case _de iure_ has sometimes proved a temptation to a weak State
to resist when it had better have agreed with its adversary, or a
temptation to a strong State to abuse its strength, whether by resorting
to force when it ought to have accepted arbitration, or by expending on
the annihilation of its opponent an amount of blood and wealth out of
all proportion to the issues involved.
Knots which the law cannot untie may have to be cut by the sword. So it
happened in the case of the United States. The Supreme Court tried its
hand and failed. The only legislative authority which could have been
invoked to settle the dispute by constitutional means was one consisting
of a two-thirds majority of each House and a three-fourths majority of
the States (acting either through Conventions or through their
legislatures), such being the only authority capable of amending the
Constitution. It was practically impossible to obtain a majority of
three-fourths of the States for an amendment dealing with slavery or
with State sovereignty. The resources of law being exhausted, the
question of Sovereignty was tried _de facto_ by a war which lasted
nearly four years, and in which about a million of men are supposed to
have perished.
X. CONCLUSION.
Upon a review of the long and, on the whole, unprofitable controversies
that have been waged regarding the abstract nature of Sovereignty, one
is struck by the fact that with the possible exception of the German
philosophers from Kant to Hegel, these controversies have been at bottom
political rather than philosophical, each theory having been prompted by
the wish to get a speculative basis for a practical propaganda. It was
so when the Pope and the Emperor were at war in the days after Gregory
the Ninth and Boniface the Eighth. It was so in the days of Bodin, of
Althaus, of Hobbes, of Locke, of Rousseau, of De Maistre and Haller. The
Romans and the English have contributed less to these controversies than
most other nations, not only because both have been eminently practical
as well as eminently legal-minded peoples, but because both had the good
fortune to obtain a clear _de iure_ Sovereign, who was for some
centuries in Rome, and has been for some centuries in England (with
short transitional periods, in both cases, of uncertainty), the
undisputed possessor not only of _de iure_, but also of _de facto_
power. Save during a few intervals of conflict, all that we English have
needed to know about Sovereignty is where the law places it[22]. We were
beginning to know this as far back as the thirteenth century; and just
at the time when Bodin’s book opens the long disputations of
post-mediaeval theorists, Sir Thomas Smith set forth the legal supremacy
of Parliament in words to whose clearness and amplitude nothing can be
added to-day[23]. In the seventeenth century a struggle which arose over
the respective rights of the component parts of this composite Sovereign
was settled _de facto_ by a civil war and by a revolution, which
negatived any right of separate legislation claimed for the Crown and
placed the judiciary in a position of independence. Yet the change then
made _de facto_ was so far from being fully expressed _de iure_ that
whoever should to-day study legal texts only, might conclude that the
Crown and the House of Lords are just as important members of the
composite Sovereign as is the House of Commons. Since 1689 _de iure_
Sovereignty has coincided with _de facto_ obedience. The idea that power
_de facto_ naturally goes along with authority _de iure_ has grown to be
almost a part of an Englishman’s mental constitution, a happy result
whereof let us all say—_Esto perpetua_. France and Germany have been
less fortunate in their history, and consequently more prolific in their
theories. Yet with the exception of a few belated defenders of the old
doctrine of ‘divine right,’ Frenchmen are now agreed as to the source of
all political power, and the Germans, equally agreed upon this point,
are chiefly occupied in debating where, according to the Constitution of
their Empire, sovereign power is to be deemed in point of theory to
reside.
-----
Footnote 22:
Indeed the recognition of the Great Council of the nation as the chief
power in the State is still older: though its exclusive supremacy,
_i.e._ its right to interfere with certain branches of the prerogative
of one part of it, the Crown, remained long contested.
Footnote 23:
In his _Commonwealth of England_ (published in 1583): ‘All that ever
the people of Rome might do, either _Centuriatis comitiis_ or
_Tributis_, the same may be done by the Parliament of England, which
representeth and hath the whole power of the realm, both the head and
body. For every Englishman is intended to be there present, either in
person or by procuration and attorney, of what pre-eminence, state,
dignity, or quality soever he be, from the prince (be he King or
Queen) to the lowest person of England, and the consent of the
Parliament is taken to be every man’s consent.’ See an article by Sir
F. Pollock in _Harvard Law Review_ for January, 1895, and his _First
Book of Jurisprudence_, p. 247.
-----
After long wanderings through many fields of speculation, as well as
many a hard-fought fight, all civilized nations have come back to the
point from which the Romans started twenty centuries ago. All hold, as
did the Romans, that sovereign power comes in the last resort from the
people, and that whoever exercises it in a State, exercises it by
delegation from the people. All also hold that in the internal affairs
of a State, power legally sovereign—even if the Constitution subjects it
to no limitation—ought to be exercised under those moral restraints
which are expected from the enlightened opinion of the best citizens,
and which earlier thinkers recognized under the name of Natural Law. The
sphere in which no Sovereignty _de iure_ exists, that of international
relations, where all power is _de facto_ only, is also the sphere in
which morality has made least progress, and in which justice and honour
are least regarded.
NOTE.
The above article was written, now a good many years ago (though it has
been revised subsequently), when I had not before me some writings on
the subject of Sovereignty, to which a brief reference ought to be made.
First among them comes Sir H. Maine. Two lectures (in the volume
entitled the _Early History of Institutions_) contain an ingenious
criticism of the system of Bentham and Austin. This criticism would now
command general assent, yet Maine suddenly stops short of the
conclusions one would naturally expect. He points out so clearly that
most of the propositions of Austin are either unreal or self-evident,
that one is inclined to fancy that the praise he nevertheless bestows is
due more to respect for the destructive work which he holds Bentham and
Austin to have done than to a belief in the substantial value of their
doctrines. Mr. F. Harrison, in an article published in the _Fortnightly
Review_ some time afterwards, has a very interesting discussion of these
two lectures, and of the Austinian theory, which he also condemns in
substance, while handling it tenderly, and holding it to be serviceable
as bracing to the reader’s mind. Mr. D. G. Ritchie (now professor at the
University of St. Andrew’s), in an article on ‘The Conception of
Sovereignty’ in the _Annals of the American Academy of Political and
Social Science_ for January, 1891, criticizes the Austinian view more
stringently, and makes many acute remarks, with most of which I find
myself in agreement. Mr. Henry Sidgwick devotes a chapter in his
_Science of Politics_ to the topic, and subjects the notion that
Sovereign Power is absolute and irresponsible to a penetrating and
suggestive analysis. Sir F. Pollock discusses the question in his
_Introduction to the Science of Politics_, and shows very clearly the
unsoundness of the Austinian view. Finally, Mr. C. E. Merriam, junior,
in his _History of the Theory of Sovereignty since Rousseau_, has
presented a full and useful account of the chief doctrines put forward
on the subject, not stating a theory of his own, but adding pertinent
criticisms on the views which he summarizes.
XI
THE LAW OF NATURE
I. THE IDEA OF NATURE AS A RULING FORCE.
It would not be possible, within the compass of anything less than a
substantial volume, either to present a philosophical analysis of the
ideas comprised or implied in the term Law of Nature, or to set forth
and explain the various senses in which that term has been in fact
employed, and the influence which, in those various senses, it has
exerted as well upon political theory as upon positive law. What I
propose to do here is something less ambitious and more closely
connected with the study of the Roman law. It is to sketch in outline
the process by which the notion of Nature as the source of law grew up
and passed into philosophy, and from philosophy into legal thought; to
show how the notion took a comparatively definite shape in the minds of
the Roman jurists; to describe the practical use to which they put it,
and finally to indicate (in the briefest way) some of the consequences
in modern times due to the prominence which the Romans assigned to it.
The subject has been treated by so many writers, some of them well known
to all students, that much of it may be passed over as familiar. My
chief aim will be to show that there is far less of a vague and merely
abstract character in the conception than has sometimes been attributed
to it; that it had a pretty definite meaning to the Roman jurists; and
that they used it in a thoroughly practical spirit.
When man, having attained some mastery over nature, begins to turn his
thoughts to an explanation or classification of the phenomena among
which he finds himself and of which he is a part, two general
observations present themselves to his mind. The first of these is that
beneath all the differences which mark off from one another the living
creatures, both animals and plants, wherewith the world is filled, there
exist certain noticeable similarities in respect of which they may be
distributed into groups. Individual animals differ from one another, but
all those of a certain kind or species have certain points in common,
which constitute their character as a kind. So also different kinds have
still many things in common. All sorts of dogs have certain common
characteristics; and though dogs differ from wolves, dogs and wolves
have many points of resemblance. Now the most general and most
remarkable of these phenomena in which living creatures are alike to one
another are the processes of growth through which they pass. They are
born in a similar way; they enter on life small and weak; they become
larger and stronger; they gain teeth at certain periods; they shed their
hair or plumage at certain periods; they at last become weaker and die.
So plants spring out of the earth from seed, shoot up and give off
leaves, bloom into flowers, form seed, wither down again into the earth
and die.
From the habit of noting these phenomena four conceptions seem to arise.
The first is this, that of the various characteristics of each creature,
those which it has in common with other creatures of the same kind are
the most deeply rooted and permanent. The second is that these
characteristics exist from the origin of the creature, and are its
Birth-gift. The third is that one group of the common characteristics,
and the most important of them all, is the group which includes the
phenomena of growth and decay. And the fourth is that in these phenomena
of growth there is evidence of some sort of force working upon and
through the creatures, something wholly irrespective of, and nowise
referable to, their volitions, something stronger than they are, and
which determines the course of their life-processes.
The second observation is that among human beings there is a similar
identity of dominant characteristics combined with an endless diversity
of individuals, a diversity greater than that between different
individuals of each lower species. In all men, however otherwise unlike,
there may be noted the same general tendencies, the same appetites,
passions, emotions. It is these passions and emotions that move men’s
actions, and move them upon principles and in ways which are always
essentially the same, despite the contrasts which one man presents to
another, despite the jars and conflicts in each man which spring from
the fact that passion may urge him in one direction, and interest in
another, while fear may arrest action altogether. Thus there is formed
the conception of a general constitution of man as man, over and above
all the peculiarities of each individual, a constitution which is not of
his own making, but is given to him in germ at the outset of his life,
and is developed with the expansion of his physical and mental powers.
The most notable marks of this constitution of man as man are therefore
its Origin at his birth, and its unfolding in the process of his Growth.
So here also the phenomena of Birth and Growth stand out as the notes of
that sort of unity which includes all mankind and makes Man what he is.
The language in which I am seeking to present these conceptions, though
untechnical, is inevitably tinged by our modern habits of thought. But
we may well believe that in substance such conceptions were present to
persons of a reflective turn long before a set of abstract terms in
which to express them had been invented. They had worked themselves into
the texture of educated minds, and had been conveyed in figurative
language by poets before metaphysicians laid hold of the matter.
When metaphysicians appear, that is to say, when thought, consciously
speculative, begins to attempt systematic and comprehensive solutions of
the problems of the universe which it has begun to realize as problems,
a new period opens. Looking round upon the animated (and now also with a
clearer eye upon the inanimate) world, philosophers feel the need of
finding a Cause for the regularity they observe in the working of
physical forces and in the growth of living creatures upon settled and
uniform lines. They conclude that there must exist a power, either
personal—a Deity or Deities—or impersonal, a sort of immanent and
irresistible force in things themselves, which has stamped its will or
tendency upon the movements and processes of the material universe. They
discover analogies between the action of such a Power in the inanimate
and in the animated world, and between its action on other animals and
its action on man. Thus they figure it to themselves as governing both
on somewhat similar principles, and aiming at somewhat similar ends. The
name they give it is drawn from Birth. It is Φύσις, _Natura_, Nature.
When they apply this method of inquiry or way of considering phenomena
to Man regarded, not as a mere animal, but as a rational being, they
find in him complex faculties and impulses working towards certain ends,
ends which, despite infinite differences of detail, are substantially
the same for all men. They note certain characteristics and tendencies
which they call Normal, as being those prescribed by the general rules
of his moral and physical constitution, and they deem every thing
varying therefrom to be either a morbid aberration, or a fact of quite
secondary consequence. And as in the wider sphere of animated being, so
in that of man taken by himself, they conceive his constitution as being
the result of a Power which has framed it with an intelligent purpose,
so harmonizing its various activities as to fit them to attain a main
and central end. Just as in the animal organism all the forces and
processes of the body are so united as best to subserve its development,
so in man regarded as a thinking being all the capacities, intellectual
and emotional, seem to be correlated and guided by a presiding
influence, that of the Rational Will, in obedience to which all the
parts and all the impulses find their proper line of action. Thus that
central and supreme power which in the material universe has been called
Nature comes to be called in man Reason, and conversely, Nature is
conceived of as necessarily Rational. For as in the universe at large
the general tendency of things and that which makes their harmony is
thought of, not merely as a fact, but also as a principle or pervading
force, not merely as the sum of the phenomena, but also as a Power
ruling the phenomena, so when a similar canon is applied by analogy to
man, this power is found in Reason. And the recognition of reason as the
harmonizing principle in man causes Nature, the force which gives to all
things their shape and character, to be conceived of as an intelligent
force moulding phenomena upon settled lines to definite ends.
Thus the conception of Nature, when it is ready to be applied to human
society, includes two elements. One is that of Uniformity or
Normality—the idea that the essence and ruling principle in all kinds of
objects and beings and processes resides in that which they have in
common, _i.e._ in the Type which runs through them. The other element is
that of Force and Control—the idea that types have been formed and that
processes work under the guidance of an intelligent Power, a power which
in the case of the material universe may or may not be what is called
conscious and personal (since as to this philosophers differ), but whose
analogue in man is conscious and personal. Thus Nature and Reason are
brought very near: or at any rate, there is what may be called a
rational quality in Nature.