APPENDICES
I. THE NAMES OF THE LAW. II. THE THEORY OF SOVEREIGNTY. III. THE MAXIMS OF THE LAW. IV. THE DIVISIONS OF THE LAW. V. THE LITERATURE OF JURISPRUDENCE.
APPENDIX I.
THE NAMES OF THE LAW.
The purpose of the following pages is to consider, in respect of their origin and relations, the various names and titles which have been borne by the law in different languages. This seems an inquiry fit to be undertaken in the hope that judicial terms may be found to throw some light upon the juridical ideas of which they are the manifestation. A comparison of diverse usages of speech may serve to correct misleading associations, or to suggest relations that may be easily overlooked by any one confining his attention to a single language.
The first fact which an examination of juridical nomenclature reveals, is that all names for law are divisible into two classes, and that almost every language possesses one or more specimens of each. To the first class belong such terms as jus, droit, recht, diritto, equity. To the second belong lex, loi, gesetz, legge, law, and many others. It is a striking peculiarity of the English language that it does not possess any generic term falling within the first of these groups; for equity, in the technical juridical sense, means only a special department of civil law, not the whole of it, and therefore is not co-extensive with jus, droit, and the other foreign terms with which it is classed. Since, therefore, we have in English no pair of contrasted terms adequate for the expression of the distinction between these two groups of names, we are constrained to have recourse to a foreign language, and we shall employ for this purpose the terms jus and lex, using each as typical of and representing all other terms which belong to the same group as itself.
What, then, are the points of difference between jus and lex; what is the importance and the significance of the distinction between the two classes of terms? In the first place jus has an ethical as well as a juridical application, while lex is purely juridical. Jus means not only law but also right. Lex means law and not also right. Thus our own equity has clearly the double meaning; it means either the rules of natural justice, or that special department of the civil law which was developed and administered in the Court of Chancery. The English law, on the other hand, has a purely juridical application; justice in itself, and as such, has no claim to the name of law. So also with droit as opposed to loi, with recht as opposed to gesetz, with diritto as opposed to legge.
If we inquire after the cause of this duplication of terms we find it in the double aspect of the complete juridical conception of law. Law arises from the union of justice and force, of right and might. It is justice recognised and established by authority. It is right realised through power. Since, therefore, it has two sides and aspects, it may be looked at from two different points of view, and we may expect to find, as we find in fact, that it acquires two different names. Jus is law looked at from the point of view of right and justice; lex is law looked at from the point of view of authority and force. Jus is the rule of right which becomes law by its authoritative establishment; lex is the authority by virtue of which the rule of right becomes law. Law is jus in respect of its contents, namely the rule of right; it is lex in respect of its source, namely, its recognition and enforcement by the state. We see, then, how it is that so many words for law mean justice also; since justice is the content or subject-matter of law, and from this subject-matter law derives its title. We understand also how it is that so many words for law do not also mean justice; law has another side and aspect from which it appears, not as justice realised and established, but as the instrument through which its realisation and establishment are effected.
A priori we may presume that in the case of those terms which possess a double application, both ethical and legal, the ethical is historically prior, and the legal later and derivative. We may assume that justice comes to mean law, not that law comes to mean justice. This is the logical order, and is presumably the historical order also. As a matter of fact this presumption is, as we shall see, correct in the case of all modern terms possessing the double signification. In the case of recht, droit, diritto, equity, the ethical sense is undoubtedly primary, and the legal secondary. In respect of the corresponding Greek and Latin terms (jus, δίκαιον) the data would seem insufficient for any confident conclusion. The reverse order of development is perfectly possible; there is no reason why lawful should not come to mean in a secondary sense rightful, though a transition in the opposite direction is more common and more natural. The significant fact is the union of the two meanings in the same word, not the order of development.
A second distinction between jus and lex is that the former is usually abstract, the second concrete.[[481]] The English term law indeed combines both these uses in itself. In its abstract application we speak of the law of England, criminal law, courts of law. In its concrete sense, we say that Parliament has enacted or repealed a law. In foreign languages, on the other hand, this union of the two significations is unusual. Jus, droit, recht mean law in the abstract, not in the concrete. Lex, loi, gesetz signify, at least primarily and normally, a legal enactment, or a rule established by way of enactment, not law in the abstract. This, however, is not invariably the case. Lex, loi, and some other terms belonging to the same group have undoubtedly acquired a secondary and abstract signification in addition to their primary and concrete one. In medieval usage the law of the land is lex terrae, and the law of England is lex et consuetudo Angliae. So in modern French loi is often merely an equivalent for droit. We cannot therefore regard the second distinction between jus and lex as essential. It is closely connected with the first, but, though natural and normal, it is not invariable. The characteristic difference between English and foreign usage is not that our law combines the abstract and concrete significations (for so also do certain Continental terms), but that the English language contains no generic term which combines ethical and legal meanings as do jus, droit, and recht.
RECHT, DROIT, DIRITTO.—These three terms are all closely connected with each other and with the English right. The French and Italian words are derivatives of the Latin directus and rectus, these being cognate with recht and right. We may with some confidence assume the following order of development among the various ideas represented by this group of expressions:—
1. The original meaning was in all probability physical straightness. This use is still retained in our right angle and direct. The root is RAG, to stretch or straighten. The group of connected terms ruler, rex, rajah, regulate, and others, would seem to be independently derived from the same root, but not to be in the same line of development as right and its synonyms. The ruler or regulator is he who keeps things straight or keeps order, not he who establishes the right. Nor is the right that which is established by a ruler.
2. In a second and derivative sense the terms are used metaphorically to indicate moral approval—ethical rightness, not physical. Moral disapproval is similarly expressed by the metaphorical expressions wrong and tort, that is to say, crooked or twisted. These are metaphors that still commend themselves; for the honest man is still the straight and upright man, and the ways of wickedness are still crooked. In this sense, therefore, recht, droit, and diritto signify justice and right.
3. The first application being physical and the second ethical, the third is juridical. The transition from the second to the third is easy. Law is justice as recognised and protected by the state. The rules of law are the rules of right, as authoritatively established and enforced by tribunals appointed to that end. What more natural, therefore, than for the ethical terms to acquire derivatively a juridical application? At this point, however, our modern English right has parted company with its Continental relatives. It has remained physical and ethical, being excluded from the juridical sphere by the superior convenience of the English law.
4. The fourth and last use of the terms we are considering may be regarded as derivative of both the second and third. It is that in which we speak of rights, namely, claims, powers, or other advantages conferred or recognised by the rule of right or the rule of law. That a debtor should pay his debt to his creditor is not merely right, it is the right of the creditor. Right is his right for whose benefit it exists. So, also, wrong is the wrong of him who is injured by it. The Germans distinguish this use of the term by the expression subjectives Recht (right as vested in a subject) as opposed to objectives Recht, namely, the rule of justice or of law as it exists objectively. The English right has been extended to cover legal as well as ethical claims, though it has, as we have seen, been confined to ethical rules.
A.S. RIHT.—It is worthy of notice that the Anglo-Saxon riht, the progenitor of our modern right, possessed like its Continental relatives the legal in addition to the ethical meaning. The common law is folc-riht.[[482]] The divine law is godes riht.[[483]] A plaintiff claims property as “his by folc-riht,”[[484]] even as a Roman would have claimed it as being dominus ex jure Quiritium. The usage, however, did not prosper. It had to face the formidable and ultimately successful rivalry of the English (originally Danish) law, and even Norman-French, on its introduction into England, fell under the same influence. For a time, indeed, in the earlier books we find both droit and ley as competing synonyms,[[485]] but the issue was never doubtful. The archaism of “common right” as a synonym for “common law” is the sole relic left in England of a usage universal in Continental languages.
EQUITY.—The English term equity has pursued the same course of development as the German recht and the French droit.
1. Its primitive meaning, if we trace the word back to its Latin source, aequum, is physical equality or evenness, just as physical straightness is the earliest meaning of right and its analogues.
2. Its secondary sense is ethical. Just as rightness is straightness, so equity is equality. In each case there is an easy and obvious metaphorical transition from the physical to the moral idea. Equity therefore is justice.
3. In a third and later stage of its development the word takes on a juridical significance. It comes to mean a particular portion of the civil law—that part, namely, which was developed by and administered in the Court of Chancery. Like recht and droit it passed from the sense of justice in itself to that of the rules in accordance with which justice is administered.
4. Fourthly and lastly we have to notice a legal and technical use of the term equity, as meaning any claim or advantage recognised or conferred by a rule of equity, just as a right signifies any claim or advantage derived from a rule of right. An equity is an equitable, as opposed to a legal right. “When the equities are equal,” so runs the maxim of Chancery, “the law prevails.” So a debt is assignable “subject to equities.”
JUS.—We have to distinguish in the case of jus the same three uses that have already been noticed in the case of recht, droit, and equity.
1. Right or Justice. “Id quod semper aequum ac bonum est jus dicitur,” says Paulus.[[486]] From jus in this sense are derived justitia and justum.
2. Law. This is the most usual application of the term, the juridical sense having a much greater predominance over the ethical in the case of jus, than in that of its modern representatives recht and droit. Jus, in its ethical signification, is distinguished as jus naturale, and in its legal sense as jus civile. It is often contrasted with fas, the one being human and the other divine law. Jus, however, is also used in a wider sense to include both of these—jus divinum et humanum.
3. A right, moral or legal: jus suum cuique tribuere.[[487]]
The origin and primary signification of jus are uncertain. It is generally agreed, however, that the old derivation from jussum and jubere is not merely incorrect, but an actual reversal of the true order of terms and ideas. Jussum is a derivative of jus. Jubere is, in its proper and original sense, to declare, hold, or establish anything as jus. It was the recognised expression for the legislative action of the Roman people. Legem jubere is to give to a statute (lex) the force of law (jus). Only in a secondary and derivative sense is jubere equivalent to imperare.
The most probable opinion is that jus is derived from the Aryan root YU, to join together (a root which appears also in jugem, jungo, and in the English yoke). It has been suggested accordingly that jus in its original sense means that which is fitting, applicable, or suitable. If this is so, there is a striking correspondence between the history of the Latin term and that of the modern words already considered by us, the primary sense in all cases being physical, the ethical sense being a metaphorical derivative of this, and the legal application coming last. The transition from the physical to the ethical sense in the case of the English fit and fitting is instructive in this connexion. Another suggestion, however, is that jus means primarily that which is binding—the bond of moral and subsequently of legal obligation. But no definite conclusion on this matter is possible.[[488]]
Δίκη. τό δίκαιον.—The Greek term which most nearly corresponds to the Latin jus is δίκη. These words cannot, however, be regarded as synonymous. The juridical use of jus is much more direct and predominant than the corresponding use of δίκη. Indeed, we may say of the Greek term that it possesses juridical implications, rather than applications. Its chief uses are the following, the connexion between them being obvious: (1) custom, usage, way; (2) right, justice; (3) law, or at least legal right; (4) judgment; (5) a lawsuit; (6) a penalty; (7) a court of law. The primary sense is said to be that first mentioned, viz. custom. The transition is easy from the idea of the customary to that of the right, and from the idea of the right to that of the lawful. In the case of the Latin mos we may trace an imperfect and tentative development in the same direction.[[489]] Professor Clark, on the other hand, prefers to regard judgment as the earliest meaning of δίκη, the other ethical and legal applications being derivatives from this, and δίκη in the sense of custom being an independent formation from the original root.[[490]] Such an order of development seems difficult and unnatural. Analogy and the connexion of ideas seem to render more probable the order previously suggested, viz. custom, right, law, and finally the remaining legal uses.[[491]]
Θέμις Θέμιστες.—As δίκη corresponds to jus, so θέμις apparently corresponds to fas. While fas, however, preserved its original signification as that which is right by divine ordinance, and never acquired any secondary legal applications or implications, the Greek term proved more flexible, and consequently has to be reckoned with in the present connection. The matter is one of very considerable difficulty, and no certain conclusions seem possible, but the following order of development would seem to commend itself as the most probable:—
1. Θέμις, divine ordinance, the will of the gods. The term is derived from the Aryan root DHA, to set, place, appoint, or establish, which appears also in θεσμός, a statute or ordinance.[[492]] This latter term, however, included human enactments, while θέμις was never so used. The Greek term is cognate with thesis and theme, and with our English doom, a word whose early legal uses we shall consider later.
2. Θέμις, right. The transition is easy from that which is decreed and willed by the gods, to that which it is right for mortal men to do.
3. Θέμιστες, the rules of right, whether moral or legal, so far as any such distinction was recognised in that early stage of thought to which these linguistic usages belong.
4. Θέμιστες, judgments, judicial declarations of the rules of right and law.[[493]]
LEX.—So far we have dealt solely with those words which belong to the class of jus, namely, those which possess a double signification, ethical and legal. We proceed now to the consideration of the second class, represented by lex. And first of lex itself. The following are its various uses given in what is probably the historical order of their establishment.
1. Proposals, terms, conditions, offers made by one party and accepted by another.[[494]] Thus, ea lege ut,[[495]] on condition that; dicta tibi est lex,[[495]] you know the conditions; his legibus,[[495]] on these conditions. So legis pacis[[495]] are the terms and conditions of peace: pax data Philippo in has leges est.[[495]] Similarly in law, leges locationis are the terms and conditions agreed upon between lender and borrower. So we have the legal expressions lex mancipii, lex commissoria, and others.
2. A statute enacted by the populus Romanus in the comitia centuriata on the proposal of a magistrate. This would seem to be a specialised application of lex in the first-mentioned sense. Such a statute is conceived rather as an agreement than as a command. It is a proposal made by the consuls and accepted by the Roman people. It is therefore lex, even as a proposal of peace made and accepted between the victor and the vanquished is lex. “Lex,” says Justinian, “est quod populus Romanus senatorio magistratu interrogante, veluti consule, constituebat.”[[496]]
3. Any statute howsoever made—whether by way of authoritative imposition, or by way of agreement with a self-governing people.
4. Any rule of action imposed or observed, e.g. lex loquendi, lex sermonis. This is simply an analogical extension similar to that which is familiar in respect of the corresponding terms in modern languages, law, loi, gesetz.
5. Law in the abstract sense. Lex, so used, cannot be regarded as classical Latin, although in certain instances, as in Cicero’s references to lex naturae, we find what seems a very close approximation to it. In medieval Latin, however, the abstract signification is quite common, as in the phrases lex Romana, lex terrae, lex communis, lex et consuetudo.[[497]] Lex has become equivalent to jus in its legal applications. This use is still retained in certain technical expressions of private international law, such as lex fori, lex domicilii, and others.
It is possible that we have here an explanation of the very curious fact that so celebrated and important a word as jus failed to maintain itself in the Romance languages. Of the two terms jus and lex, bequeathed to later times by the Latin language, one was accepted (loi = lex) and the other rejected and supplanted by a modern substitute (droit, diritto). Why was this? May it not have been owing to that post-classical use of lex in the abstract sense, whereby it became synonymous and co-extensive with jus? If lex Romana was jus civile, why should the growing languages of modern Europe cumber themselves with both terms? The survivor of the two rivals was lex. At a later stage the natural evolution of thought and speech conferred juridical uses on the ethical terms droit and diritto and the ancient duality of legal nomenclature was restored.
6. Judgment. This, like the last and like the three following uses, is a medieval addition to the meanings of lex. We have already seen the transition from law to judgment in the case of jus, δίκη, and θέμις. Legem facere is to obey or fulfil the requirements of a judgment. Legem vadiare, the English wager of law, is to give security for such obedience and fulfilment.[[498]]
7. The penalty, proof, or other matter imposed or required by a judgment: lex ignea, the ordeal of fire; lex duelli, trial by battle.[[499]]
8. Legal rights, regarded collectively as constituting a man’s legal standing or status. Legem amittere (in English, to lose one’s law) was in early English law an event analogous to the capitis deminutio and infamia of the Romans. It was a loss of legal status, a partial deprivation of legal rights and capacities.[[500]]
Νόμος.—As δίκη corresponds to jus and θέμις to fas, so νόμος is the Greek equivalent of lex. We have to distinguish two uses of the term, one earlier and general, the other later and specialised.
1. Νόμος is used in a very wide sense to include any human institution, anything established or received among men, whether by way of custom, opinion, convention, law or otherwise. It was contrasted, at least in the language of the philosophers, with φύσις, or nature. That which is natural is το φυσικόν; that which is artificial, owing its origin to the art and invention of mankind, is τὸ νομικόν. It is often said that the earliest meaning of νόμος is custom. The original conception, however, seems to include not merely that which is established by long usage, but that which is established, received, ordained, or appointed in whatever fashion. Νόμος is institutum, rather than consuetudo.
Νόμος in a later, secondary, and specialised application, means a statute, ordinance, or law. So prominent among human institutions are the laws by which men are governed, so greatly with increasing political development do the spheres and influence of legislation extend themselves, that the νόμοι became in a special and pre-eminent sense the laws of the state. Νόμος was a word unknown to Homer, but it became in later times the leading juridical term of the Greek language. The Greeks spoke and wrote of the laws (νόμοι), while the Romans, perhaps with a truer legal insight, concerned themselves with the law (jus). When, like Cicero, they write de legibus, it is in imitation of Greek usage.
LAW.—Law is by no means the earliest legal term acquired by the English language. Curiously enough, indeed, it would seem not even to be indigenous, but to be one of those additions to Anglo-Saxon speech which are due to the Danish invasions and settlements. Of the earlier terms the commonest, and the most significant for our present purpose, is dom, the ancestor of our modern doom.[[501]] A dom or doom is either (1) a law, ordinance, or statute, or (2) a judgment. It does not seem possible to attribute with any confidence historical priority to either of these senses. In modern English the idea of judgment has completely prevailed over and excluded that of ordinance, but we find no such predominance of either meaning in Anglo-Saxon usage. The word has its source in the Aryan root DHA, to place, set, establish, appoint, and it is therefore equally applicable to the decree of the judge and to that of the lawgiver. In the laws of King Alfred we find the term in both its senses. “These are the dooms which Almighty God himself spake unto Moses and commanded him to keep.”[[502]] “Judge then not one doom to the rich and another to the poor.”[[503]] In the following passage of the laws of Edgar the laws of the Danes are plainly equivalent to the dooms of the English: “I will that secular right stand among the Danes with as good laws as they best may choose. But with the English let that stand which I and my Witan have added to the dooms of my forefathers.”[[504]]
Doom is plainly cognate to θέμις. The religious implication, however, which, in the Greek term, is general and essential, is, in the English term, special and accidental. In modern English doom is, like θέμις, the will, decree and judgment of Heaven—fate or destiny; but the Anglo-Saxon dom included the ordinances and judgments of mortal men, no less than those of the gods. Θέμις, therefore, acquired the sense of human law only derivatively through the sense of right, and so belongs to the class of jus, not of lex; while doom, like θεσμός, acquired juridical applications directly, and so stands besides lex and νόμος.
Dom, together with all the other Anglo-Saxon legal terms, including, strangely enough, right itself, was rapidly superseded by lagu, which is the modern law. The new term makes its appearance in the tenth century, and the passage cited above from the laws of King Edgar is one of the earliest instances of its use. Lagu and law are derived from the root LAGH, to lay, settle, or place. Law is that which is laid down. There is a considerable conflict of opinion as to whether it is identical in origin with the Latin lex (leg-). Schmidt and others decide in the affirmative,[[505]] and the probabilities of the case seem to favour this opinion. The resemblance between law and lex seems too close to be accidental. If this is so, the origin of lex is to be found in the Latin lego, not in its later sense of reading, but in its original sense of laying down or setting (as in the derivative lectus), which is also the primary signification of the Greek λέγῳ, the German legen, and the English lay.[[506]] If this is so, then law and lex are alike that which is laid down, just as Gesetz is that which is set (setzen). This interpretation is quite consistent with the original possession by lex of a wider meaning than statute, as already explained. We still speak of laying down terms, conditions, and propositions, no less than of laying down commands, rules, and laws. Lex, however, is otherwise and variously derived from or connected with, ligare, to bind,[[507]] legere, to read,[[508]] and λέγειν, to say or speak.[[509]]
It is true indeed that by several good authorities it is held that the original meaning of lagu and law is that which lies, not that which has been laid or settled—that which is customary, not that which is established by authority.[[510]] The root LAGH, however, must contain both the transitive and intransitive senses, and I do not know what evidence there is for the exclusion of the former from the signification of the derivative law. Moreover, there seems no ground for attributing to lagu the meaning of custom. It seems from the first to have meant the product of authority, not that of use and wont. It is statutum, not consuetudo. As soon as we meet with it, it is equivalent to dom. The analogy also of lex, gesetz, dom, θεσμός, and other similar terms is in favour of the interpretation here preferred.[[511]]
APPENDIX II.
THE THEORY OF SOVEREIGNTY.
In discussing the theory of the state, we noticed the distinction between sovereign and subordinate power.[[512]] The former is that which, within its own sphere, is absolute and uncontrolled, while the latter is that which is subject to the control of some power superior and external to itself. We have now to consider in relation to this distinction a celebrated doctrine which we may term Hobbes’s theory of sovereignty. It was not, indeed, originated by the English philosopher, but is due rather to the celebrated French publicist Bodin, from whom it first received definite recognition as a central element of political doctrine. In the writings of Hobbes, however, it assumes greater prominence and receives more vigorous and clear-cut expression, and it is to his advocacy and to that of his modern followers that its reception in England must be chiefly attributed.
The theory in question may be reduced to three fundamental propositions:—
1. That sovereign power is essential in every state;
2. That sovereign power is indivisible;
3. That sovereign power is unlimited and illimitable.
The first of these propositions must be accepted as correct, but the second and third would seem to have no solid foundation. The matter, however, is one of very considerable obscurity and complexity, and demands careful consideration.
1. Sovereignty essential. It seems clear that every political society involves the presence of supreme power. For otherwise all power would be subordinate, and this supposition involves the absurdity of a series of superiors and inferiors ad infinitum. Yet although this is so, there is nothing to prevent the sovereignty which is thus essential from being wholly or partly external to the state. It is, indeed, only in the case of those states which are both independent and fully sovereign that the sovereignty is wholly internal, no part of it being held or exercised ab extra by any other authority. When a state is dependent, that is to say, merely a separately organised portion of a larger body politic, the sovereign power is vested wholly or in part in the larger unity, and not in the dependency itself. Similarly when a state, though independent, is only semi-sovereign, its autonomy is impaired through the possession and exercise of a partial sovereignty by the superior state. In all cases, therefore, sovereign power is necessarily present somewhere, but it is not in all cases to be found in its entirety within the borders of the state itself.
2. Indivisible sovereignty.—Every state, it is said, necessarily involves not merely sovereignty, but a sovereign, that is to say, one person or one body of persons in whom the totality of sovereign power is vested. Such power, it is said, cannot be shared between two or more persons. It is not denied that the single supreme body may be composite, as the English Parliament is. But it is alleged that whenever there are in this way two or more bodies of persons in whom sovereign power is vested, they necessarily possess it as joint tenants of the whole, and cannot possess it as tenants in severalty of different parts. The whole sovereignty may be in A., or the whole of it in B., or the whole of it in A. and B. jointly, but it is impossible that part of it should be in A. and the residue in B.
We may test this doctrine by applying it to the British constitution. We shall find that this constitution in no way conforms to the principles of Hobbes on this point, but is on the contrary a clear instance of divided sovereignty. The legislative sovereignty resides in the Crown and the two Houses of Parliament, but the executive sovereignty resides in the Crown by itself, the Houses of Parliament having no share in it. It will be understood that we are here dealing exclusively with the law or legal theory of the constitution. The practice is doubtless different; for in practice the House of Commons has obtained complete control over the executive government. In practice the ministers are the servants of the legislature and responsible to it. In law they are the servants of the Crown, through whom the Crown exercises that sovereign executive power which is vested in it by law, independently of the legislature altogether.
In law, then, the executive power of the Crown is sovereign, being absolute and uncontrolled within its own sphere. This sphere is not indeed unlimited. There are many things which the Crown cannot do; it cannot pass laws or impose taxes. But what it can do it does with sovereign power. By no other authority in the state can its powers be limited, or the exercise of them controlled, or the operation of them annulled. It may be objected by the advocates of the theory in question that the executive is under the control of the legislature, and that the sum total of sovereign power is therefore vested in the latter, and is not divided between it and the executive. The reply is that the Crown is not merely itself a part of the legislature, but a part without whose consent the legislature cannot exercise any fragment of its own power. No law passed by the two Houses of Parliament is operative unless the Crown consents to it. How, then, can the legislature control the executive? Can a man be subject to himself? A power over a person, which cannot be exercised without that person’s consent, is no power over him at all. A person is subordinate to a body of which he is himself a member, only if that body has power to act notwithstanding his dissent. A dissenting minority, for example, may be subordinate to the whole assembly. But this is not the position of the Crown.
The English constitution, therefore, recognises a sovereign executive, no less than a sovereign legislature. Each is supreme within its own sphere; and the two authorities are kept from conflict by the fact that the executive is one member of the composite legislature. The supreme legislative power is possessed jointly by the Crown and the two Houses of Parliament, but the supreme executive power is held in severalty by the Crown. When there is no Parliament, that is to say, in the interval between the dissolution of one Parliament and the election of another, the supreme legislative power is non-existent, but the supreme executive power is retained unimpaired by the Crown.[[513]]
This is not all, however, for, until the passing of the Parliament Act, 1911, the British constitution recognised a supreme judicature, as well as a supreme legislature and executive. The House of Lords in its judicial capacity as a court of final appeal was sovereign. Its judgments were subject to no further appeal, and its acts were subject to no control. What it declared for law no other authority known to the constitution could dispute. Without its own consent its judicial powers could not be impaired or controlled, nor could their operation be annulled. The consent of this sovereign judicature was no less essential to legislation, than was the consent of the sovereign executive. The House of Lords, therefore, held in severalty the supreme judicial power, while it shared the supreme legislative power with the Crown and the House of Commons.[[514]]
3. Illimitable sovereignty. Sovereign power is declared by the theory in question to be not merely essential and indivisible, but also illimitable. Not only is it uncontrolled within its own province, but that province is infinite in extent. “It appeareth plainly to my understanding,” says Hobbes,[[515]] “both from reason and Scripture, that the sovereign power, whether placed in one man, as in monarchy, or in one assembly of men, as in popular and aristocratical commonwealths, is as great as possibly men can be imagined to make it.... And whosoever, thinking sovereign power too great, will seek to make it less, must subject himself to the power that can limit it; that is to say, to a greater.” So Austin:[[516]] “It follows from the essential difference of a positive law and from the nature of sovereignty and independent political society, that the power of a monarch properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation.... Supreme power limited by positive law is a flat contradiction in terms.”
This argument confounds the limitation of power with the subordination of it. That sovereignty cannot within its own sphere be subject to any control is self-evident, for it follows from the very definition of this species of power. But that this sphere is necessarily universal is a totally different proposition, and one which cannot be supported. It does not follow that if a man is free from the constraint of any one stronger than himself, his physical power is therefore infinite.
In considering this matter we must distinguish between power in fact and power in law. For here as elsewhere that which is true in law may not be true in fact, and vice versa. A de facto limitation of sovereign power may not be also a de jure limitation of it, and conversely the legal theory of the constitution may recognise limitations which are non-existent in fact.[[517]]
That sovereign power may be, and indeed necessarily is, limited de facto is sufficiently clear. Great as is the power of the government of a modern and civilised state, there are many things which it not merely ought not to do, but cannot do. They are in the strictest sense of the term beyond its de facto competence. For the power of a sovereign depends on and is measured by two things: first the physical force which he has at his command, and which is the essential instrument of his government; and second, the disposition of the members of the body politic to submit to the exercise of this force against themselves. Neither of these two things is unlimited in extent, therefore the de facto sovereignty which is based upon them is not unlimited either. This is clearly recognised by Bentham.[[518]] “In this mode of limitation,” he says, “I see not what there is that need surprise us. By what is it that any degree of power (meaning political power) is established? It is neither more nor less ... than a habit of and a disposition to obedience.... This disposition it is as easy, or I am much mistaken, to conceive as being absent with regard to one sort of acts, as present with regard to another. For a body, then, which is in other respects supreme, to be conceived as being with respect to a certain sort of acts limited, all that is necessary is that this sort of acts be in its description distinguishable from every other.... These bounds the supreme body in question has marked out to its authority: of such a demarcation, then, what is the effect? Either none at all, or this: that the disposition to obedience confines itself within these bounds. Beyond them the disposition is stopped from extending; beyond them the subject is no more prepared to obey the governing body of his own state than that of any other. What difficulty, I say, there should be in conceiving a state of things to subsist, in which the supreme authority is thus limited—what greater difficulty in conceiving it with this limitation, than without any, I cannot see. The two states are, I must confess, to me alike conceivable: whether alike expedient, alike conducive to the happiness of the people, is another question.”
The follower of Hobbes may admit the de facto, but deny the de jure limitation of sovereign power. He may contend that even if there are many things which the sovereign has no power to do in fact, there is and can be nothing whatever which he has no power to do in law. The law, he may say, can recognise no limitations in that sovereign power from which the law itself proceeds.
In reply to this it is to be observed that the law is merely the theory of things as received and operative within courts of justice. It is the reflection and image of the outer world seen and accepted as authentic by the tribunals of the state. This being so, whatever is possible in fact is possible in law, and more also. Whatsoever limitations of sovereign power may exist in fact may be reflected in and recognised by the law. To allow that de facto limitations are possible is to allow the possibility of corresponding limitations de jure. If the courts of justice habitually act upon the principle that certain functions or forms of activity do not, according to the constitution, pertain to any organ in the body politic, and therefore lie outside the scope of sovereign power as recognised by the constitution, then that principle is by virtue of its judicial application a true principle of law, and sovereign power is limited in law no less than in fact.
The contrary view is based on that unduly narrow view of the nature of law which identifies it with the command of the sovereign issued to his subjects. In this view, law and legal obligation are co-extensive, and the legal limitation of supreme power appears to involve the subjection of the possessor of it to legal obligations in respect to the exercise of it. This, of course, conflicts with the very definition of sovereign power, and is clearly impossible.[[519]] That sovereign power may be legally controlled within its own province is a self-contradictory proposition; that its province may have legally appointed bounds is a distinct and valid principle.
There is one application of the doctrine of illimitable sovereignty which is of sufficient importance and interest to deserve special notice. Among the chief functions of sovereign power is legislation. It follows from the theory in question, that in every political society there necessarily exists some single authority possessed of unlimited legislative power. This power is, indeed, alleged to be the infallible test of sovereignty. In seeking for that sovereign who, according to the doctrine of Hobbes, is to be found somewhere in every body politic, all that is necessary is to discover the person who possesses the power of making and repealing all laws without exception. He and he alone is the sovereign of the state, for he necessarily has power over all, and in all, and is subject to none.
As to this it is to be observed, that the extent of legislative power depends on and is measured by the recognition accorded to it by the tribunals of the state. Any enactment which the law courts decline to recognise and apply is by that very fact not law, and lies beyond the legal competence of the body whose enactment it is. And this is so, whether the enactment proceeds from a borough council or from the supreme legislature. As the law of England actually stands, there are no legal limitations on the legislative power of the Imperial Parliament. No statute passed by it can be rejected as ultra vires by any court of law. This legal rule of legislative omnipotence may be wise or it may not; but it is difficult to see by what process of reasoning the jurist can demonstrate that it is theoretically necessary.
At no very remote period it was considered to be the law of England, that a statute made by Parliament was void if contrary to reason and the law of God.[[520]] The rule has now been abandoned by the courts, but it seems sufficiently obvious that its recognition involves no theoretical absurdity or impossibility, however inexpedient it may be. Yet it clearly involves the limitation of the power of the legislature by a rule of law. To take another example, the most striking illustration of the legislative omnipotence of the English Parliament is its admitted power of extending the term for which an existing House of Commons has been elected. Delegates appointed by the people for a fixed time have the legal power of extending the period of their own delegated authority. It is difficult to see any theoretical objection to a rule of the opposite import. Why should not the courts of law recognise and apply the principle that an existing Parliament is sovereign only during the limited time for which it was originally appointed, and is destitute of any power of extending that time? And in such a case would not the authority of the supreme legislature be limited by a rule of law?
The exercise of legislative power is admittedly subject to legal conditions; why not, then, to legal limitations? If the law can regulate the manner of the exercise of legislative power, why not also its matter? As the law stands, Parliament may repeal a statute in the same session and in the same manner in which it was passed. What, then, would be the effect of a statute providing that no statute should be repealed save by an absolute majority in both Houses? Would it not create good law, and so prevent either itself or any other statute from being repealed save in manner so provided? What if it is provided further, that no statute shall be repealed until after ten years from the date of its enactment? Is such a statutory provision void? And if valid, will it not be applied by the law courts, so that any attempt to repeal either it or any other statute less than ten years old will be disregarded, as beyond the competence of Parliament? And if a statute can be made unrepealable for ten years, how is it legally impossible that it should be made unrepealable for ever? Such a rule may be very unwise, but by what argument are we to prove that it involves a logical absurdity?
In respect of its legislative omnipotence the English Parliament is almost unique in modern times. Most modern constitutions impose more or less stringent limitations upon the powers of the legislature In the United States of America neither Congress nor any State Legislature possesses unrestricted powers. They cannot alter the constitutions by which they have been established, and those constitutions expressly withdraw certain matters from their jurisdiction. Where, then, is the sovereignty vested? The reply made is that these constitutions contain provisions for their alteration by some other authority than the ordinary legislature, and that the missing legislative power is therefore to be found in that body to which the right of altering the constitution has been thus entrusted. In the United States the sovereignty, it is said, is vested not in Congress, but in a majority of three-fourths of the State Legislatures; this composite body has absolute power to alter the constitution, and is therefore unbound by any of the provisions of it, and is so possessed of unlimited legislative power.
Now, whenever the constitution has thus entrusted absolute powers of amendment to some authority other than the ordinary legislature, this is a perfectly valid reply. But what shall we say of a constitution which, while it prohibits alteration by the ordinary legislature, provides no other method of effecting constitutional amendments? There is no logical impossibility in such a constitution, yet it would be clearly unalterable in law. That it would be amended in defiance of the law cannot be doubted, for a constitution which will not bend will sooner or later break. But all questions as to civil and supreme power are questions as to what is possible within, not without, the limits of the constitution. If there is no constitution which meets with due observance, there is no body politic, and the theory of political government is deprived of any subject-matter to which it can apply. The necessary datum of all problems relating to sovereignty is the existence and observance of a definite scheme of organised structure and operation, and it is with this datum and presupposition that we must discuss the question of the extent of legislative power.
Even where a constitution is not wholly, it may be partly unchangeable in law. Certain portions of it may on their original establishment be declared permanent and fundamental, beyond the reach even of the authority to which in other respects the amendment of the constitution is entrusted. Article V. of the Constitution of the United States of America provides that no State shall be deprived of its equal suffrage in the Senate without its own consent. Having regard to this provision, what body is there in the United States which has vested in it unlimited legislative power? The same Article provides that certain portions of the Constitution shall be unalterable until the year 1808. What became of sovereign power in the meantime?[[521]]
APPENDIX III.
THE MAXIMS OF THE LAW.
Legal maxims are the proverbs of the law. They have the same merits and defects as other proverbs, being brief and pithy statements of partial truths. They express general principles without the necessary qualifications and exceptions, and they are therefore much too absolute to be taken as trustworthy guides to the law. Yet they are not without their uses. False and misleading when literally read, these established formulae provide useful means for the expression of leading doctrines of the law in a form which is at the same time brief and intelligible. They constitute a species of legal shorthand, useful to the lawyer, but dangerous to any one else; for they can be read only in the light of expert knowledge of that law of which they are the elliptical expression.
The language of legal maxims is almost invariably Latin, for they are commonly derived from the civil law, either literally or by adaptation, and most of those which are not to be found in the Roman sources are the invention of medieval jurists. The following is a list of the more familiar and important of them, together with brief comments and references.