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]