James Bryce Bryce.

Studies in history and jurisprudence online

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in Athens, it would be going too far to apply to him or


to any person in his position such a description as that
of dc facto sovereign. In most of the South American
republics the Practical Sovereign is the army, or a
general (or combination of generals) whom the army,
whether or no this general be in fact President, will fol-
low. In Egypt, though the Legal Sovereign is the Khe-
dive for little regard need be had to the theoretical
suzerainty of the Turk, which is put in force only when
the European Powers choose to use it for their own pur-
poses the Practical Sovereign has for some years past
been the British Government. In Rome, after the revo-
lution which overthrew the republic, the Practical Sove-
reign was Octavianus Augustus, though the Legal Sove-
reignty remained vested in the People, subject to the
claim of the Senate to exercise certain powers. In Syra-
cuse under Dionysius the Elder, in Florence under Lo-
renzo dei Medici, each of those tyrants was Practical
Sovereign, though neither enjoyed legal supremacy. In
England people are accustomed to call the House of
Commons the ' sovereign power/ though the law makes
the consent of the other House and that of the Crown
just as necessary to the validity of a statute as is that
of the representatives of the people. In Denmark within
our own time the Practical Sovereign was for some
years the King, because the Constitution, which gives
legal sovereignty to the Legislature and King together,
was for a while virtually in abeyance, there having been a
struggle and deadlock during which the Crown retained
its ministers and raised taxes without the concurrence of
the popular house. One might refer, by way of illustra-
tion, to cases in which some private organization exerts
a power which interferes with that of the dc iure govern-
ment. Such was the Vehmgericht in Westphalia in the
fifteenth century, such, on a much smaller scale and in
a less effective way, were the Molly Maguires of Penn-
sylvania and the Mafia of Sicily. But these cases lie
quite outside our definition : as do those of monarchies
in which a strong minister or a father confessor or even


a court favourite has held the position of Practical Sove-
reign, that is to say, has been the person who would and
could have his way, wielding the powers of the State at
his sole pleasure through his influence upon the will of
the titular sovereign 1 .

The Musulman world furnishes two instances which
deserve a passing word. The Mogul Emperors after
Aurungzebe continued to be sovereigns de iure for a long
time in Northern and Central India, though it was hard
to say, till the East India Company extended its con-
quests far inland, who was sovereign de facto. Since the
time of Sultan Selim the First (A.D. 1516) the Turkish
Sultans have been (in large measure) Khalifs de facto.
They claim to be Khalifs de hire, but the better opinion
among Muslim sages is that the Khalif must be, as were
the Ommiyads and the Abbasides, of the tribe of the
Khoreish, to which Muhamad belonged, and in matters
of such high sanctity long possession de facto makes no
difference. Possibly therefore the Shereef of Mecca may
be better entitled to call himself the Khalif de iure, en-
titled to the obedience of all the Faithful.

Where the Legal is not also the Practical Sovereign,
it is obviously a far more difficult task to discover the
latter than the former. As respects legal power there
are the fixed rules of law, which in communities that
have reached a certain stage of development indicate
clearly the person (or body) to whom the ultimate right
of legislation, or of issuing executive orders, belongs.
But the political philosopher or historian who wishes
to ascertain the actually strongest force in a State lacks
the guidance of such rules as the lawyer possesses. He
has to do with facts which are uncertain, with forces
which are imponderable. In no two countries, more-
over, are the phenomena of Practical Sovereignty quite
the same. Nevertheless it is true that there is in every
State a Strongest Force, a power to which other powers

1 During part of Lewis the Fifteenth's reign Madame Du Barry might almost
have been, and probably was, described as sovereign de facto of France.


bow, and of which it may be, more or less positively,
predicted that in case of conflict it will overcome all re-
sistance. Here, however, we come upon one of the
many difficulties that beset an inquiry into practical su-
premacy. Are we to take a condition of peace, and ask
whose will actually prevails while peace lasts, or are we
to suppose a condition of war, and ask who would pre-
vail if the strife between contending authorities were
to be fought out by physical force ? In the before-men-
tioned case of Denmark, for instance, though the Crown
practically carried on the government, it was by no
means clear that, if an insurrection broke out, the Crown
would prove to be stronger than the popular chamber
or those who supported it. In such inquiries the pre-
cision with which Legal Sovereignty can be determined
is unattainable, for the political student finds that the
terms suited to the phenomena of one country are un-
suited to those of another, and that his general propo-
sitions regarding the actually Sovereign Powers must be
subject to so many qualifications that they virtually
cease to be general.

We have, however, found in every political commu-
nity two kinds of Sovereign, belonging to two different
spheres of thought, the Sovereign dc hire and the Sove-
reign dc facto. Let us see what are the relations of the
two conceptions, or the two concrete persons, each to
the other.


The Sovereign dc lure may also be the sovereign de
facto. He ought to be so ; that is to say, the plan of a
well-regulated State requires that Legal Right and
Actual Power should be united in the same person or
body. Right ought to have on its side, available for its
enforcement, physical force and the habit of obedience.
Where Sovereignty de facto is disjoined from Sove-


reignty de iure, there will not necessarily be a collision,
because the former power may act through the latter.
But there is always a danger that the laws will be over-
ridden by the Practical Sovereign and disobeyed by the

Sovereignty de iure and sovereignty de facto have a
double tendency to coalesce; and it is this tendency
which has made them so often confounded.

Sovereignty de facto, when it has lasted for a certain
time and shown itself stable, ripens into Sovereignty de
iure. Sometimes it violently and illegally changes the
pre-existing constitution, and creates a new legal system
which, being supported by force, ultimately supersedes
the old system. Sometimes the old constitution be-
comes quietly obsolete, and the customs formed under
the new de facto ruler become ultimately valid laws, and
make him a de iure ruler. In any case, just as Posses-
sion in all or nearly all modern legal systems turns itself
sooner or later through Prescription into Ownership
and conversely possession as a fact is aided by title
or reputed title so de facto power, if it can maintain
itself long enough, will end by being de iure. Mankind,
partly from the instinct of submission, partly because
their moral sense is disquieted by the notion of power
resting simply on force, are prone to find some reason
for treating a de facto ruler as legitimate. They take any
pretext for giving him a de iure title if they can, for it
makes their subjection more agreeable and may impose
some restraint upon him.

Sovereignty de iure in its turn tends to attract to itself
sovereignty de facto, or, in other words, the possession
of legal right tends to make the legal sovereign actually
powerful. Hence a ruler de facto is always anxious to
get some sort of de iure title, and Louis Napoleon, who
had seized power by violence in 1851, thought himself,
and doubtless was, more secure after he had got two
(so-called) plebiscites in his favour in 1852, recognizing
him first as President for ten years and then Emperor.


This is not merely because the Legal Sovereign has pre-
sumably a moral claim to obedience I say presumably,
because he may have forfeited this claim by tyranny
but also because most men are governed and all are in-
fluenced by Habit, and therefore tend to go on obeying
the person they have theretofore obeyed. It is more-
over easier, in case of conflict, to know who is dc inrc
sovereign than to foretell who will prove to be sovereign
de facto; and whereas the dc iure sovereign is certain, if
victorious, to punish as rebels those who have opposed
him, the de facto sovereign, having been himself a rebel,
may possibly be more indulgent. Under King Henry
the Seventh in England express provision was made by
statute for the protection of persons obeying a de facto
king l . Accordingly, when strife arises between two per-
sons or bodies of nearly equal physical resources, each
claiming authority, the person who has the better legal
claim will usually have the better prospect of success,
and the ordinary citizen will be safer in siding with him.
This is one of the reasons why conspiracies and insurrec-
tions, even against the worst de iure sovereigns, so often

Similarly it happens that where sovereignty de iure
is in dispute and uncertain, strife is likely to trouble the
practical sphere in the hands of the claimant who for
the moment holds the government de facto; and this not
merely because some of the people are zealous to support
rights which they think infringed upon, but also because
the sense of stability which supports a government has
been impaired, and the usual check on a resort to physi-
cal force thereby removed.

When a sovereign has been long and quietly estab-
lished de iure, the distinction between law and fact is
forgotten, and people assume that whoever has the legal
right will also as a matter of course have the physical
force to support it. This tends to make the distinction
forgotten. Conversely, when de facto sovereignty is

1 ii Henry VII, cap. i.


frequently in dispute, as happened in the Roman Empire
during part of the third century A.D., and happens now
in some of the so-called republics of Central and South
America, the dc iure sovereign virtually disappears, and
nothing but the actual strength of each dc facto sove-
reign, or pretender to sovereignty, is regarded. Some
of these republics are so much accustomed to the sus-
pension of de iure government by dc facto disturbance,
that they provide that when a rebellion is over the pre-
viously enacted constitution shall be deemed not to have
lost its force 1 . It might be expected that when such a
state of things has continued and become familiar, the
conception of a legal sovereign would itself fade away
and be extinguished. But political necessities and the
example of other countries forbid this in the more civi-
lized communities. It is so convenient to all parties to
maintain the fabric of ordinary private law with the judi-
cial and executive machinery required to support that
fabric, that even when the person (or set of persons) who
exercises Practical Sovereignty is frequently changed
by revolutions, the substitution of one head for another
is not deemed to affect the general machinery. Admini-
stration is held to go on de iure, and the new occupant of
the supreme power steps at once into the legal position
of his predecessor. In the Roman Empire of the first
four centuries of our era, the office of Emperor remained
with its recognized functions and powers, though the
holder of the office was frequently changed by violent
means, and seldom possessed what lawyers would call
a good title. The individual man was a pure de facto
sovereign, often with no legal right to the obedience of
the subject, but Caesar Augustus remained unchanged,
and probably five-sixths of the population of the Empire
did not know the personal name or the previous history
of him whom they revered as Caesar Augustus. So the

1 Thus the Constitution of Guatemala directs : ' Esta Constitucion no perderd
su fuerza y vigor auncuando poralguna rebelion se interrnmpa su observancia.' I
take this instance from the book of M. Ch. Borgeaud, fctablisse-ment et Revision
des Constitutions, p. 236.


changes in the constitution of France between January,
1848, and February, 1871, in which there were three total
and absolute ruptures of legal continuity by revolution,
with two interregna under provisional governments, had
little effect on the laws or the courts or the civil admini-
stration of France. The same thing happened during
the dynastic wars of the fifteenth century in England.
Thus even in disorderly times the idea of rule dc in re
is not lost among peoples that have once imbibed it.
All through the English Civil War and Protectorate of
the seventeenth century strenuous efforts were made by
the Long Parliament and by Oliver Cromwell to make
their government appear to be dc iurc, though the Resto-
ration Parliament treated it as having been (on the
whole) de facto. In most Central or South American
republics, on the other hand, as among the Italian re-
publics of the fourteenth century, the interferences of
the de facto sovereign with the course of law and ad-
ministration are so numerous that the very notion of
dc hire government loses its practical efficacy, and people
simply submit to force, praising the ruler who least
abuses his despotic power.

The action and reaction of power de iure and de facto
upon one another might be illustrated by a diagram a
sort of political seismographic record showing how the
disturbance of either disturbs the other, and how the
steadiness of the dc iurc needle or the frequent quiverings
of the de facto needle indicate the stability or instability
of the institutions of a country. One may express the
relations of the two somewhat as follows:

When Sovereignty de iurc attains its maximum of
quiescence, Sovereignty dc facto is usually also
steady, and is, so. to speak, hidden behind it.

When Sovereignty dc iurc is uncertain, Sovereignty
de facto tends to be disturbed.

When Sovereignty de facto is stable, Sovereignty
de iurc, though it may have been lost for a time,
reappears, and ultimately becomes stable.


When Sovereignty de facto is disturbed, Sovereignty

de mre is threatened.

Or, more shortly, the slighter are the oscillations of
each needle, the more do they tend to come together
in that coincidental quiescence which is an index to the
perfect order, though not otherwise to the excellence,
of a government.

Let us try to sum up the propositions to which the
foregoing inquiry has led us :

The term Sovereignty is used in two senses, Legal
Supremacy and Practical Mastery.

Legal Sovereignty exists in the sphere of Law: it
belongs to him who can demand obedience as of

Practical Sovereignty exists in the sphere of Fact:
it is the power which receives and can by the
strong arm enforce obedience.

The Legal Sovereign in any State is ascertained by
determining the Person (or Body) to whom the
law assigns in the last resort the right of issuing
general rules or special orders, or of doing acts
without incurring liability therefor.
The Practical Sovereign is ascertained by deter-
mining who is the Person (or Body) whose will
in the last resort prevails (or in case of conflict,
will be likely to prevail) against all other wills.
Legal Sovereignty does not depend upon the obe-
dience actually rendered; for the law assumes
obedience to be always enforceable. Obedience
paid is not a note characterizing the Legal Sove-
reign, but a Postulate of his existence. That the
Legal Sovereign does in fact exercise his rights
under the influence of another person (or body)
makes no difference. He is none the less a Legal
Sovereign. A Mikado is Legal Sovereign though
the Shogun may rule in his name. Thus Legal
Sovereignty is Formal, not Material.
Legal Sovereignty is Divisible: I.e. different


branches of it may be concurrently vested in
different Persons (or Bodies), co-ordinate alto-
gether (Pope and Emperor), or co-ordinate par-
tially only (President and Congress), though act-
ing in different spheres.

Practical Sovereignty seems indivisible, for by its
definition it can belong to one Person (or Body)
only, viz. that which is actually the strongest
(though perhaps not known to be the strongest)
in the State. But it may be so far divided that
men obey one ruler in one sphere of action and
another in another sphere. In the fourteenth
century, for instance, all Christians obeyed the
Pope in spiritual matters, their secular govern-
ment in temporal, and this whether the latter was
only dc facto or also dc in re. There might of
course be much dispute as to what were spiritual
matters, but no one denied that in matters which
were really spiritual the Church alone should be

Legal Sovereignty may be Limited, i.e. the law of
any given State may not have allotted to any
one Person (or Body), or to all the Persons (or
Bodies) taken together, who enjoys (or enjoy)
supreme legislative (or executive) power, the
right to legislate, or to issue special orders, on
every subject whatever. That is to say, some
subjects may be reserved to the whole People,
or may be declared unsusceptible of being legis-
lated on at all, even by the whole people. If there
be a reservation to the people of an ultimate de-
cision on all subjects, as for instance by way
of constant Referendum, the people and not the
legislature may be the true Legal Sovereign. But
a right reserved to the people of qualified inter-
ference, or of altering the powers of the Legisla-
ture from time to time, does not of itself deprive
the legislature of legal sovereignty.


Practical Sovereignty is, by definition, incapable of
being limited (for Law has nothing to do with it),
though the exercise of it by its possessor may be
restrained by the fear of consequences.
Although Legal and Practical Sovereignty are dis-
tinct conceptions, belonging to different spheres, they
are in so far related that

Legal Authority is a potent factor in creating Prac-
tical Mastery.

Practical Mastery usually ripens, after a certain

time, into Legal Authority.

In an orderly State, the respect for Legal Sove-
reignty keeps questions of Practical Sovereignty
in abeyance.

In a disorderly State, conflicts regarding Practical
Sovereignty weaken and ultimately destroy the
respect for Legal Sovereignty.

To which we may add, with a view to questions to be
discussed presently

Questions of the Moral Rights conferred and the
Moral Duties imposed by Sovereignty, whether
Legal or Practical, belong to a different province
from that in which the determination of the nature
of either kind of Sovereignty lies. Such questions
are however in so far related to these two that

Legal Sovereignty carries with it a prima facie moral
claim to the obedience of all citizens ;

Practical Sovereignty carries with it no further
moral claim to obedience than such as arises from
the fact that a useless resistance to superior physi-
cal force tends to breaches of the peace and to
suffering which might be spared.

In both cases it may be the duty of the citizen,
where some higher moral interest than that of
avoiding breaches of the peace is involved, to re-
sist either the Legal or the Practical Sovereign.
Let it be further noted that though one is obliged to


speak of the Practical Sovereign as exerting a limitless
power, and as some of those who have written on Sove-
reignty describe the Sovereign as being subject to no
restraint whatever, his sole will being absolutely domi-
nant over all his subjects, there has never really existed
in the world any person, or even any body of persons,
enjoying this utterly uncontrolled power, with no exter-
nal force to fear and nothing to regard except the grati-
fication of mere volition. The most despotic monarch
is bound to respect, and often to bow to, the general
sentiment of his subjects. From some acts even a Sultan
Hakim in Egypt or a Gian Galeazzo Visconti in Milan
recoils, because he feels they might provoke an insur-
rection or bring about his own assassination. A popular
majority (although also to some extent limited) is less
sensitive, because individuals, nearly all of them obscure,
have less to fear. In this sense a democracy, that is to
say, the majority in a democracy, may be a more absolute
sovereign than a monarch. But the majority in a demo-
cracy has fewer personal temptations to abuse power.
It is moreover checked by the feeling that if it does so
it may alienate its own more moderate section. Hence
it becomes tyrannical only when it is swayed by violent
passion, or when it is sharply divided into two sections
between whom no moderate party is left.


Let us now turn to consider the theory of Sovereignty
which, started by Hobbes, reiterated by Jeremy Ben-
tham, and set forth with dreary prolixity by John Austin,
found much acceptance in England during the first three
quarters of the present century, though it has latterly lost
its former prestige. The modern form of Hobbes' doc-
trine (whose original form will be presently stated and
examined) is recommended by its apparent simplicity
and completeness. But we shall find it to have the de-
fects (i) of confounding two things essentially distinct,


the sphere of law and the sphere of fact ; (2) of ignoring
history; and (3) of being inapplicable to the great ma-
jority of actual States, past or present. It can be
brought into conformity with the facts only by an elabo-
rate process, either of rejecting a large part of the facts,
or else of torturing and twisting the conception itself.
A rule which consists chiefly of exceptions is not a help-
ful rule. In the human sciences, such as sociology, eco-
nomics, and politics, just as much as in chemistry or
biology, a theory ought to arise out of the facts and be
suggested by them, not to be imposed upon the facts as
the product of some a priori views. If it needs endless
explanations and qualifications in order to adapt it to the
facts, it stands self-condemned, and darkens instead of
illumining the student's mind.

Obviously however no such theory would have
emerged or for so long commanded respect but for
causes of considerable weight and permanence. Its ori-
gin therefore, and the sources of its influence, deserve to
be carefully examined by the light which history supplies.
And to explain its origin, one must digress a little from
our proper theme, and go back to the fountain of
modern legal ideas in the Roman law.

The Roman jurists themselves fell into no confusion
between the rights of a legal sovereign and the powers
of the actual or (so-called) ' political ' sovereign, for they
dealt with legal sovereignty only, and dealt with it, not
as political philosophers, but simply as lawyers. Under
the Republic, legislative supremacy belonged to the peo-
ple meeting in their comitia, while a certain control of
the executive magistrates, springing from the right to
advise, was practically allowed to the Senate. It may
be argued that the people could have legally deprived
the Senate of its executive powers, and those who hold
this view may if they like hold that the Senate had not
in technical strictness any sort of sovereignty even in
executive matters 1 .

1 As to the Senate's right of legislation, see Essay XIV? p. 716.


For our present purpose the important point is the
period of Justinian, because it was in the form into
which he condensed it that Roman law affected political
speculation after the twelfth century. Now Justinian's
Institutes and Digest still talk of the Roman people as
possessing of right supreme legislative authority, though
in point of fact they had not exercised it for more than
five centuries. And in recognizing the Emperor as the
person who actually possesses legislative power, they
deduce his rights from a delegation by the people of
their rights, and perhaps, if we are to take their words

Online LibraryJames Bryce BryceStudies in history and jurisprudence → online text (page 45 of 80)