Chapter IV: The Relations of Legal to Practical Sovereignty

The Sovereign _de iure_ 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 Sovereignty _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 overridden by the Practical Sovereign and disobeyed by the citizens.

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 becomes 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 Possession 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 presumably 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 influenced by Habit, and therefore tend to go on obeying the person they have theretofore obeyed. It is moreover easier, in case of conflict, to know who is _de iure_ sovereign than to foretell who will prove to be sovereign _de facto_; and whereas the _de 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[9]. Accordingly, when strife arises between two persons 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 insurrections, even against the worst _de iure_ sovereigns, so often fail.

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Footnote 9:

11 Henry VII, cap. 1.

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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 physical force thereby removed.

When a sovereign has been long and quietly established _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 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 _de iure_ sovereign virtually disappears, and nothing but the actual strength of each _de facto_ sovereign, or pretender to sovereignty, is regarded. Some of these republics are so much accustomed to the suspension of _de iure_ government by _de facto_ disturbance, that they provide that when a rebellion is over the previously enacted constitution shall be deemed not to have lost its force[10]. 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 civilized communities. It is so convenient to all parties to maintain the fabric of ordinary private law with the judicial 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. Administration 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 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 administration 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 _de iure_ 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 _de iure_, though the Restoration 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 republics of the fourteenth century, the interferences of the _de facto_ sovereign with the course of law and administration are so numerous that the very notion of _de iure_ government loses its practical efficacy, and people simply submit to force, praising the ruler who least abuses his despotic power.

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Footnote 10:

Thus the Constitution of Guatemala directs: ‘Esta Constitucion no
perderá su fuerza y vigor auncuando por alguna rebelion se interrumpa
su observancia.’ I take this instance from the book of M. Ch.
Borgeaud, _Établissement et Révision des Constitutions_, p. 236.

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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 _de iure_ 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 iure_ attains its maximum of quiescence,
Sovereignty _de facto_ is usually also steady, and is, so to speak,
hidden behind it.

When Sovereignty _de iure_ is uncertain, Sovereignty _de facto_ tends
to be disturbed.

When Sovereignty _de facto_ is stable, Sovereignty _de iure_, though
it may have been lost for a time, reappears, and ultimately becomes
stable.

When Sovereignty _de facto_ is disturbed, Sovereignty _de iure_ 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 Right.

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 determining 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 obedience actually
rendered; for the law assumes obedience to be always enforceable.
Obedience paid is not a note characterizing the Legal Sovereign, 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
altogether (Pope and Emperor), or co-ordinate partially only
(President and Congress), though acting 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 government in temporal, and this whether the
latter was only _de facto_ or also _de iure_. 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 obeyed.

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 legislated on at all, even by the
whole people. If there be a reservation to the people of an ultimate
decision 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
interference, or of altering the powers of the Legislature 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 distinct conceptions, belonging to different spheres, they are in so far related that—

Legal Authority is a potent factor in creating Practical Mastery.

Practical Mastery usually ripens, after a certain time, into Legal
Authority.

Thus—

In an orderly State, the respect for Legal Sovereignty 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 physical 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 resist 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 Sovereignty describe the Sovereign as being subject to no restraint whatever, his sole will being absolutely dominant 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 external force to fear and nothing to regard except the gratification 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 insurrection 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 democracy 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.