The Potowmack Institute


Charles Mcllwain

From Measure. "Sovereignty in the World Today" by Charles McIlwain, Volume 2, 1950. © 1950 by Henry Regnery Publishing. All rights reserved. Reprinted by special persmission of Regnery Publishing, Inc., Washington, DC.

N EARLY HALF a century ago Mr. James C. Carter, one of the leaders of the New York bar, in his book on Law, Its Origin, Growth and Function, made the assertion that "the theory of Austin has received, both in England and America, a wider acceptance and adoption among juridical writers than any other." Few, I think, would question the accuracy of this statement after a reading of the works of such eminent and influential authors as Sir George Cornewall Lewis, Sir Henry Maine, Professors Dicey and Holland, and more recently the great legal history of Sir William Holdsworth— Austinians all; and I am inclined to believe that Mr. Carterís statement remains as true of English and American political thinking today as it was when he made it.

And yet, no less an authority than F. W. Maitland, the greatest master of them all, ventured to say of John Austin that "though he was at times an acute dissector of confused thought, he was too ignorant of the English, the Roman and every other system of law to make any considerable addition to the sum of knowledge. j. a. = o."

Which shall we believe? We must accept one view or the other if we admit the inevitability of human government, as everyone must do except the few lone survivors of the extinct school of philosophical anarchists; and a decision was never more important than today, when we see one great nation rejecting the international inspection of atomic materials because this involves an alleged infraction of that nationís sovereignty; and some of us still have the painful memory of a time when a few influential leaders in another country wrecked the League of Nations on a similar pretext. Surely the nature of sovereignty is a subject of far more than mere academic importance, and we should be clear as to our definition of it and the grounds on Which we base it.

The historic differences of opinion about sovereignty have usually concerned its real essence, whether a matter of law or of fact; the possibility or impossibility of limits to its exercise; or its proper seat, whether a state, a people, a king, a representative assembly, or a collegiate organ such as the English one composed of both king and parliament.

The solution we adopt of such important practical questions as these will in large part be due to our acceptance or nonacceptance of several fundamental distinctions.

Logically, the first of these is probably the question whether we should designate the supreme judicial organ or the supreme legislature as the sovereign body in any state. I take it that the modern answer to this question is clear and practically unanimous. It is unquestionably the legislative organ, for it can always override any decision of the courts. Sovereignty is now invariably thought of as legislative sovereignty. But it has not always been so considered. In fact it was never so until men finally realized that medieval promulgation had actually been superseded by modern legislation, and that realization came surprisingly late. In 1576 Bodin claimed, and probably with justice, that he was the first to see it clearly, and even he had failed to note it in his Methodus, published only ten years before.

All his great contemporaries, I believe, would have agreed with the Chancellor Michel de Hôpital that the chief mark of sovereignty must always be "de judger et faire justice," as medieval men had thought.

However, when the new fact of legislation was once grasped~ acceptance of Bodinís views soon became well-nigh universal, and this was as true of England as of the Continent. In the period from i6oO to the outbreak of civil war there was no political writer cited in England more often or more favorably than Jean Bodin. It is hardly too much to say that his conception of the nature of the state and of the supreme power within it had become the normal thought of Englishmen generally, and when objections were occasionally made to it, I find them more frequently on the Continent than in England.

In the conception of the state just referred to, Bodin made another contribution to political thought scarcely less significant than his recognition of the fact of legislation. He defined a "republic" as "a government," and in so doing repudiated the view held so generally by modern German theorists, that a government can never be more than a mere "Träger der Staatsgewalt," while the real sovereignty

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always resides in a kind of mystical body which we call the State.

"We shall not fear to think of the State as a unity, a personality, a sovereign— a sovereign in whose presence the visible ruler can aspire to no higher title than that of sovereign organ," says Jethro Brown in his book The Austinian Theory of Law. I do fear to think thus of the state, particularly in view of the recent history of Germany.

This invariable ascription by Bodin of sovereignty to a "visible ruler, if justified, has the further effect of refuting such modern statements, for example, as Kernís, that the sovereignty of the Middle Ages was in reality the sovereignty not of the ruler but of the law itself. Then as now, it is true, men did recognize that law should always direct the sovereign in his government, and also that it may even set bounds to his authority; but actual government always necessarily implies will, and will is the function of men and only of men. Modern political developments have made it increasingly difficult for us to appreciate the true difference between medieval limitation of government and the direct control of it. Theories of sovereignty were then ill abeyance largely because feudal decentralization made it difficult to find anywhere a supremacy of any kind.

Bodinís assertion that the sovereign in any state must always be a government has a further bearing upon modern political thought: it is a virtual denial of the view widely held that, whatever the governments the sovereignty must always remain in the people— the theory of "popular sovereignty." The legislative body, according to this theory, is the people, and the people are always the true sovereign. But the legislature obviously is not the people. The people are legally bound to obey the legislatureís commands until these are repealed by the legislature itself, no matter how oppressive or unpopular they may be. The people may of course force the repeal of such unpopular laws in time, but until the legislature sees fit to act, the people will disobey them at their peril. Popular sovereignty is, in fact, possible only in a pure democracy without representative institutions— the only form of democracy recognized by Rousseau as legitimate— but, as usually employed, the phrase "popular sovereignty" contains a contradiction in terms; for, whether we like it or not, in choosing a legislature we are choosing a master, and because we choose it, it is no less a master than a monarch with hereditary title.

It is this theory of popular sovereignty, no doubt, which leads some to say that in the United States the true sovereignty today consists of the shifting and temporary majorities that at any given time are able to obtain an amendment to the Federal Constitution. But what a Sovereign results! From 1804 to 1865 not a single such amendment

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was ever adopted in the United States. This is a sleeping sovereign indeed. The upholders of such a theory as this are making the fatal mistake of confusing two very different things, the constituent action of a people in choosing a frame of government, and the governmental activity of the legislative organ created by the constitution so chosen.

Possibly it was Bodinís partial retention of medieval ideas which accounts for certain obvious limitations or defects in his theory when applied to modern states, some of which were noted within a generation or two of his own time. For one thing, his rigid doctrine of the indivisibility of sovereignty led him to deny sovereign authority to all mixed governments such as the English king in Parliament; a limitation condemned as early as 1606 by Henning Arnisaeus of Halberstadt in his Doctrina Politica, and, as I believe, completely refuted later by Philip Hunton. Huntonís little tract on monarchy, first published in 1643, has received scant justice at the hands of modern historians of political thought, but it is hard to escape his logic when he points out that any denial of sovereignty to such a corporate or collegiate body as the English king in Parliament is likewise a denial of the possibility of any corporate action of any kind among men and must apply as properly to every aristocracy or democracy in the world as to a mixed monarchy like Englandís. Filmer, it is true, did so apply it, and logically reduced all legitimate governments to the rule of one single man; but Bodin, on the other hand, like most political theorists of his time, had fully accepted democracy and aristocracy, as well as monarchy, among the possible forms of legitimate government.

Another important criticism of Bodinís theory of the state occurs in the brilliant treatise on Seignories of Charles Loyseau, which appeared in i6o8. Bodin had set forth in his République the view that "he alone is sovereign absolutely who holds nothing of another." Loyseau, on the other hand, contends that the existence or non-existence of a sovereign authority does not depend thus upon the bare fact of vassalage, but upon the nature of the fief; and that a prince even though the feudatory of another, does not thereby cease to be a sovereign, provided his person is not subject to anotherís jurisdiction and he himself retains the absolute authority over his own subjects. He holds, in short, that "the sovereignty is measured by the seigneurie and not by the Seigneur," thus apparently making internal relations in a state the chief criterion of sovereignty and by implication excluding most of those we now include under our phrase "external sovereignty."

It was perhaps natural that such a question should still be discussed

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feudal terms in 1576 or 1608, while we habitually think of it in of terms of the national state. Nevertheless, we still have with us the pine problems and there is probably no era in the past when the Interrelation of states was more closely tied to the theories of sovereignty held within them than at the present day. The outcome has not always been a happy one, and I have often wondered whether it might not make for greater clearness if we could use entirely different terms for the internal and the external aspects of government and confine our word "sovereignty" to the former alone, as Loyseau did. This might seem an unimportant and wholly academic question but it is on just such questions that differences have arisen in the past that in some cases have led to actual war. The effect of external restrictions created by treaty upon such an internal question as the definition of citizenship, in dispute between England and the South African Republic, must certainly be reckoned among the causes of the Boer War. If the proposed international Bill of Rights is ever adopted, we may expect many more such differences in the future.

Among the distinctions we must draw if we would understand the nature of sovereignty, its history, and its proper place in our thoughts about the state, I come in the last place to the distinction most fundamental of all, the one between a supremacy based upon law and that resulting from mere power.

That this is a valid and an important distinction, English history in the last few centuries is the abundant proof. If we were to look for the power, during a part of the sixteenth century at least, it would certainly be with the king; for a part of the eighteenth it was in the hands of an aristocracy— Or, as some might prefer to say, an oligarchy; in the twentieth, as a result of the extension of the franchise, it belongs to the people. Yet, during this whole period, thus marked by these enormous shifts of power, the supreme authority to make law— primum ac praecipuum caput majestatis, as Bodin had termed it— was never changed: it remained throughout solely in the king in Parliament. These facts led Lord Bryce to make a distinction between "legal sovereignty" and what he termed "political sovereignty." The former of these is certainly sovereignty, the latter I should prefer to call mere power, rather than sovereignty of any sort. The important fact in this connection, however, is that the former is truly legal, not merely factual; it is based upon the ancient law, not upon the temporary accident of power. Here is the crux of the whole controversy between Austin and his opponents. It is also the main point of difference between Bodin and Hobbes.

The last of these statements, I know, has often been questioned.

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Hobbes and Bodin are usually classed together among the advocates of absolutism. As Sir William Holdsworth said in 1912, "We do not think that Coke had fully grasped the doctrine of sovereignty as taught by Bodin and, after his day, by Hobbes."

If such an identification of the sovereignty of Hobbes and of Bodin is unwarranted, as I think it is, the mistake results from no misunderstanding of the theories of Hobbes— his absolutism is clear enough. It comes entirely from a failure to note certain aspects of Bodinís theory of sovereign authority.

It is true that Bodinís sovereign is legibus solutus, but it is not always sufficiently noted that in France such laws of which he is free do not include the law of God, the law of nature, or the fundamental laws of the monarchy; by these the king is bound. Unfortunately, however, those of which he is free do include the customary law of the land, whose origin Bodin and most of his contemporaries attribute to earlier kings and not to the people. Unlike the common law of England, always defended as the peopleís "birthright" never to be altered without their consent in Parliament, the French coutume had come by Bodinís day to be regarded as a royal and not a peopleís law, the work of earlier monarchs and therefore a law that a reigning king" might change without consulting his Estates. Bodin, however, was more liberal than most of his contemporaries on one important point: he held that the right to property was not a customary but a natural right, protected by the unalterable law of nature and there fore beyond any kingís authority to change.

Within the half century following the death of Bodin his feeble safeguard of natural right had been utterly swept away by the rising tide of absolutism in France, and by 1632 LeBret could assert with truth that the king by virtue of his absolute authority could levy tailles and subsidies upon his people "even without their consent." If we might judge from such historical results alone, we could scarcely deny that the outcome of Bodinís sovereignty had fully demonstrated its despotic tendency. His fatal admission that kings and not the people were the authors of the customary law of the land must probably be considered the chief of the intellectual roots of French absolutism. No wonder then that so many modern authorities With this in mind should see little to choose between the theories of Jean Bodin and the undoubted absolutism of the Leviathan.

And yet in his own day Bodin had protested with heat against this very charge, and his courageous defense of private property in the Estates of 1576 is proof of his sincerity. Notwithstanding the serious defects in his theory and their disastrous results, I cannot believe that

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the conception of the state and of the supreme authority within it presented in Bodinís Republique is the one "taught. . . after his day by Hobbes." In the former the sovereignís authority is founded in and bounded by law; in the latter, it follows automatically upon 0cre actual mastery. These two conceptions are in reality poles apart in essence, whatever may have been their common historical outcome. "It is authority, and not reason, which makes a law," Hobbes declared in his Dialogue of the Common Laws of England. Bodin, I believe, could never have made such a statement.

In his Behemoth, Hobbes also expresses his contempt for those who "dreamt of a mixed power of the King and the two Houses. That it was a divided power, in which there could be no peace was above their understanding."

The whole of English constitutional history from 1642 to the present day is proof of the accuracy of this statement if restricted thus to mere power; but when stretched to cover the sovereignty of the king in Parliament, it involves the denial of a legal doctrine held more or less consciously from medieval times to the present, a doctrine which on the whole had always been true to fact in England save in the few years of the interregnum of the seventeenth century. It was the anomalous situation in that short interval that constituted the basis for the political speculations of Hobbes. For the brief period of the Commonwealth and Protectorate his theory of sovereignty was accurate enough, but for no other part of English history since the Conquest.

In this connection I venture to repeat some statements made a good many years ago. If the Stuarts had been content with the moderate prerogative of Bodin or Eliot or Hale, instead of the extreme doctrines of Filmer, there would have been need for neither civil war nor revolution. Before 1642 it was nothing more than the tempered constitutional monarchy of Hale or Eliot for which the parliamentary leaders were struggling. It was only after hostilities had begun that the constitution was forgotten and actual mastery, not legal right, became the end to be achieved at any cost, and when the wars were over it was this actual mastery and not constitutional right which actually triumphed. It was therefore actual might, not Constitutional right, which the Commonwealth and the Protectorate established; it was actual might, not constitutional right, on which Hobbes, with these facts before him, based the sovereignty in any state whatever. Thus, for Hobbes, Filmerís arbitrary royal power had come to be a power vested in either an assembly or a king, but none the less arbitrary for that. Hale or Eliot would have repudiated

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all arbitrary government whatsoever, whether of a king or a parliament; Filmer had declared that any government in England must be both arbitrary and royal; for Hobbes it must be arbitrary but not necessarily royal; for many Whigs a century later it must be arbitrary but cannot be merely royal. Thus it seems that it is to the civil wars of the seventeenth century and not to the precedents of the original English constitution that we are indebted for the peculiar doctrine of political supremacy of Thomas Hobbes, a doctrine which enthrones might in place of right and can brook no limits to the arbitrary authority of the sovereign. It is not without significance that the great figure on the frontispiece of the Leviathan, armed with all the symbols of authority, should have a face not unlike the face of Oliver, but in no way resembling that of the late king. And it may not have been mere ambition that led Cromwell himself to toy with the idea of assuming the crown when so urged, in the first draft of the Humble Petition and Advice. If he had done so, some of his judges at least would have felt more secure than they did in their administration of the law of the land.

John Austin was no doubt thinking primarily of parliamentary government when he wrote his Province of Jurisprudence Determined; but it is hard indeed to see how he could possibly reconcile the existence of such a government, founded in law and sanctioned by centuries of history, with the statement in his book that whenever in any society a determinate person (or persons) habitually receives the obedience of "the bulk" of the members of that society, that person (or persons) must be considered to be the sovereign in that society. For in such a statement there is no question of law or Of right. It is the mere physical fact of mastery, the actual existence and continuance of obedience, whether induced by consent or fear of force, which clothes those who happen to obtain it, no matter ho~ or why they do obtain it, with the supreme authority in any state.

In what essential feature then, it might be asked, does a sovereignty such as this differ from the teachings of Thomas Hobbes; in whit important respect, if any, does it resemble the traditional author" of the English king in Parliament?

It is no doubt true that, in the strictness of English law, the principle is unquestionable that the Parliament is not only "absolute but that it may lawfully be arbitrary; but to admit this is not to say that this unbounded authority results from the "habitual" obedience of the English people: it comes from the immemorial law of the land.

It must also be conceded that at times in the past some of Parliament actions have been truly arbitrary; and Burke was probably

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justified in 1770 when he said "the distempers of parliament" had become "the great subjects of apprehension and redress." That "redress came in the course of time, not in the form of law alone, but also in the conventions of the constitution so admirably described by Bagehot. As a result, the legal omnipotence of Parliament has become little more than a harmless fiction, and what makes it so is the existence of responsible government. It is true, then, politically, and as a matter of fact, that the permanence of Englandís form of government rests upon the "habitual" obedience of the English people, and this may account for Austinís making it the basis of his theory of sovereignty but it is true politically only and not legally; and if for any reason the people should wish to withdraw their obedience, they could do it in no legal way, but only by revolution, as they did in 1688. They must either obey the government or destroy it. Parliament is not the sovereign because the people obey it; they obey it because it is the sovereign.

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