Jurisprudence

by Sir John W. Salmond

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]]