If it is awkward, under such circumstances, that the conception should be so indispensable, it doubtless has the advantage of forcing boldness upon us. If for nothing else than for the sake of a modus vivendi, we must out with whatever notion it is that we have accepted or invented with reference to the nature and lodgement of sovereignty. It is, on the whole, safer to be explicit than to hedge.
And yet it is not easy to be explicit; for there are no suitable terms to be explicit with. One no sooner begins to examine the field and the matter of controversy than he begins to suspect that it is all a question of terminology. After being hurried in bewilderment through one of Browning’s short poems without being permitted to be quite sure at any point of the full meaning, we are led in our disappointment to wonder, with Mr. Birrell, if it can be the punctuation. In what we read of sovereignty we are led to wonder if it can be the words that confuse us. It must be evident to every one who has not been sophisticated by the terms themselves, or committed beyond retrieval by the controversial use of them, that when, for example, the people of the United States and the Czar of Russia are put together in the same class as sovereigns, language has been forced to a very artificial use, and one term made to cover radically different things. There is clearly a striking contrast between these two sovereigns, in character, in method, and in power. Doubtless an excellent way by which to enter our subject would be through an examination of this difference. But another way is more direct.
Let us begin with an accepted definition of sovereignty. It is both decent and convenient to take that of Austin, that celebrated definition which he received through Bentham from Hobbes. Austin conceived a sovereign very concretely, as a person or body of persons existing in an independent political society and accorded the habitual obedience of the bulk of the members of that society, while itself subordinate to no political superior. Law he defined to be the explicit or implicit command of such a person or body of persons, addressed to the members of the community, its inferiors or subjects. He took it for granted that in every independent community supreme political authority did actually vest in some such determinate sovereign person or body of persons.
By the very term used to describe it, moreover, this sovereignty is supremacy—is subject to no limitation. Every law is a command, not only, but the command of a supreme authority; and it would be a singular contradiction in terms to speak of this supreme power as limited by law. How can the supreme author of law within a state himself be subject to law: how can the creature bind the creator? How can one refrain from smiling at the logical incapacity of those who speak of limitations to sovereignty, or, more absurdly still, of divisions of sovereignty? Is there a hierarchy of supremacies: can there be a co-ordination of creators?
Austin had studied in Bonn while it was the residence of such men as Niebuhr, Schlegel, Arndt, Welcher, Mackeldey, and Heffter, and at a period when controversy touching some of the fundamental questions concerning the province and method of jurisprudence was in its keen youth. His thought was mature, indeed, before he went abroad, and nature had very imperatively commanded of what sort that thought should be by giving him a mind framed for abstract conception and sharp logical processes; but contact with German thinking contributed many important elements to his mental equipment. Thibaut became scarcely less his master than Bentham. It was inevitable that it should be Thibaut rather than Savigny. Savigny believed that all law was rooted in old habit, and that legislation could modify law successfully and beneficially only by consenting to the secondary rôle of supplementing, formulating, or at most guiding custom. He was at weapons drawn with the school of Thibaut, which proposed to lay legislative hands on the entire body of German law, make a code which should be common to all the German States, and so help to make Germany a national unit. To attempt thus to systematize law, where by natural development it was unsystematic, seemed to Savigny a deliberate effort to render it artificial. Law, he maintained, did not often grow into a logical system, but was the product of daily accretions of habit and sluggish formations of thought, which followed no system of philosophy. It was not the business of legal science to force it into logical categories; it was its function, rather, to give a clear explanation of the principles and order of its life and a satisfactory working analysis of its several parts and conceptions. Thibaut, on the other hand, believed it to be the legitimate function of the jurist to make piecemeal law up into organic wholes, rendering it clear where it had been obscure, correcting its inconsistencies, trimming away its irregularities, reducing the number of its exceptional provisions, discovering and filling in its gaps, running it through with threads of system, giving it elegance of style and completeness of method. He thought it possible to change law from a system of habits into a system of commands. These were, of course, the ideas which were most attractive, most congenial, to the mind of Austin.
But, however natural such conceptions may have been to Austin, it must certainly be regarded as singular that, although rejected on the Continent, where sovereignty had throughout the most important formative periods of European history been quite unequivocally lodged in unmistakable sovereigns, these notions should have been accepted in England, the land where law had been least subject to doctrine, most observant of times and circumstances, most piecemeal in its manner of construction, least like a set of commands, and most like a set of habits and conventions. Doubtless we are to remember, however, that the feudal theory of law had long been held with perfect confidence by English lawyers in calm despite of fact. Probably it is true that the English mind (our own), with its practical habit, likes nice systems well enough because of their appearance of completeness, has a sense of order which enjoys logic, without having any curiosity or capacity for the examination of premises. The Englishman has always been found ready to accept, from those who had the leisure to amuse themselves in that way, interesting explanations of his institutions which did not at all fit the actual facts. It has caused him no inconvenience, for he has not perceived the lack of adjustment between his actual transactions and the theory he has accepted concerning them. He has, of course, not troubled himself to alter his institutions to suit his philosophy. That philosophy satisfied his thought and inconvenienced neither Parliament nor the law courts. And so he had no doubt Austin was right.
Austin’s logic is unrelenting, and the loyalty of his followers unflinching. Sir Henry Maine having shown that throughout the greater part of history the world has been full of independent political societies possessing no law-making sovereign at all, and it having become notorious that legislation has everywhere played a late and comparatively subordinate part in the production of law, the latest writers of the Austinian school have reduced jurisprudence to a merely formal science, professing to care nothing for the actual manner in which law may originate, nothing even for most of the motives which induce men to obey law, provided you will but concede that there is, among a great many other imperative motives, one which is universally operative, namely, the fear of the compulsion of physical force, and that there is at least one sovereign function, namely, the application of that physical force in the carrying out of the law. They ask to be allowed to confine themselves to such a definition of positive law as will limit it to “rules which are enforced by a political superior in his capacity as such.” They take for their province only a systematic description of the forms and method “of the influence of government upon human conduct” through the operation of law. They thus virtually abandon the attempt to find any universal doctrines respecting the rôle of government as a maker of laws. For them government is not a creative agent, but only an instrumentality for the effectuation of legal rules already in existence. So hard is the principle of life to get at that they give over all attempts to find it, and, turning away from the larger topics of the biology, restrict themselves to the morphology, of law.
When it came to pointing out the body of persons with which sovereignty was lodged in particular states of complex constitutional structure, Austin was sometimes very unsatisfactory. Sovereignty is lodged in England, he says, in the king, the peers, and—not the House of Commons, but—the electorate. For he holds the House of Commons to be merely a trustee of the electors, notwithstanding the fact that the electors exercise their right of franchise under laws which Parliament itself enacted and may change. In the United States he “believes” it to be lodged “in the States’ governments, as forming an aggregate body;” and he explains that by the government of a State he does not mean its “ordinary legislature, but the body of its citizens which appoints its ordinary legislature, and which, the Union apart, is properly sovereign therein.” Apparently he is led thus to go back of the House of Commons and the legislatures of our States to the electorates by which they are chosen, because of his conception of sovereignty as unlimited. If he stopped short of the electors, some part of his sovereign body would be subject to political superiors. If he were to go beyond the electors, to the larger body of the people—to the women and the children and the men who cannot vote—he would come upon, not a “determinate,” but an indeterminate body of persons.
Our own writers, however, having made bold to embrace the dogma of popular sovereignty with a certain fervor of patriotism, have no hesitation about taking the additional step. They maintain, with Lieber, that “according to the views of free men,” sovereignty “can dwell with society, the nation, only.” Writers like the late Judge Jameson, of Chicago, declare that they have very definite ideas of what this means. They think that Mr. Bryce expounded the doctrine when he wrote his chapter on “Government by Public Opinion.” “When the true sovereign has spoken,” says Judge Jameson, “at public meetings, by the press, or by personal argument or solicitation, the electorate, when it acts, either registers the behests of the people or ceases betimes further to represent them.” “The pressure of public opinion consciously brought to bear upon the electorate,” he declares to be, even when “inarticulate” (whatever inarticulate pressure may be), “a clear and legitimate exercise of sovereign power;” and he thinks that Mr. Herbert Spencer meant the same thing when he declared that “that which, from hour to hour, in every country, governed despotically or otherwise, produces the obedience making political action possible, is the accumulated and organized sentiment felt towards inherited institutions made sacred by tradition,” inasmuch as Mr. Spencer proceeds to say with all plainness, “Hence it is undeniable that, taken in its widest acceptation, the feeling of the community is the sole source of political power; in those communities, at least, which are not under foreign domination. It is so at the outset of social life, and it still continues substantially so.” And yet, if Mr. Spencer means the same thing that Judge Jameson means, what are we to think of the present fraternization of France and Russia? If the people be sovereign in France and the Czar sovereign in Russia, it is doubtless quite conceivable that one sovereign should love another; but if it be true, as Judge Jameson makes Mr. Spencer say, that it is the people, even in Russia, who are after all sovereign, what are we to think of the fondness of the French sovereign for a government which is holding the Russian sovereign in subjection? If this be correct thinking, it puts us into awkward quandaries, troubling our logic as well as condemning our lives.
Apply this doctrine of our masters in American law to our actual political conditions, and see how far it simplifies the matter. In the United States (so runs the orthodox creed) the People is sovereign.—the verb is singular because the people, under this doctrine, constitute a unit. And yet it is notorious that they never have acted as a unit, nor ever can act as a unit under our existing constitution. They have always acted, and must always act, in state groups. And in state groups what action do they take? They assent to constitutional provisions, or refuse to assent to them; and they select certain persons to act as law-makers, as judges, or as executive officers of government. Do they choose policies? No. Do they frame constitutional provisions? Certainly not; they only accept or reject them. In the only case in which they speak directly concerning specific provisions of law, they neither command nor originate. They receive or decline what is offered them. They must wait until they are asked. They have neither initiative nor opportunity to construct. They must be consulted concerning government, but they do not conduct it.