Chapter V: Roman and Mediaeval Views of Sovereignty

Let us now turn to consider the theory of Sovereignty which, started by Hobbes, reiterated by Jeremy Bentham, 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’ doctrine (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 defects (1) 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 majority of actual States, past or present. It can be brought into conformity with the facts only by an elaborate 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 helpful rule. In the human sciences, such as sociology, economics, 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 origin 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 people 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[11].

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Footnote 11:

As to the Senate’s right of legislation, see Essay XIV, p. 304.

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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 strictly, a delegation not in perpetuity to the imperial office, but to each individual Emperor in succession. Like the English of the seventeenth century, the Romans were determined worshippers of legality, and sought carefully to obliterate the traces of revolution, so they continued for a long time to treat the arrangement by which supreme authority was vested in a person as the holder of certain magistracies as a provisional and temporary arrangement[12].

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Footnote 12:

At one moment, after the death of Caligula, it was proposed in the
Senate to set to work anew the republican constitution, which had
never been formally superseded.

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It need hardly be said that centuries before Justinian’s day this doctrine of delegation, for a time formally expressed in the so-called _lex de imperio_ passed at the accession of each new Emperor, had become a mere antiquarian curiosity, no more representing the actual facts than the language of the Anglican liturgy regarding the Crown represents the actual condition to-day of the royal prerogative in England. Justinian and his successors had in the fullest sense of the word complete, unlimited, and exclusive legal sovereignty; and the people of old Rome, who are talked of in the _Digest_, by the lawyers of the second and third centuries, as the source of the Emperor’s powers, were not in A.D. 533, except in a vague _de iure_ sense, actual subjects of Justinian, being in fact ruled by the Ostrogothic king Athalarich (grandson of the great Theodorich). But it is noteworthy that the lawyers also assigned to the people as a whole, entirely apart from any political organization in any assembly, the right of making law by creating and following a custom, together with that of repealing a customary law by ceasing to observe it, _i.e._ by desuetude, and that they justify the existence of such a right by comparing it with that which the people exercise by voting in an assembly. ‘What difference,’ says Julian, writing under Hadrian, ‘does it make whether the people declares its will by voting or by its practice and acts, seeing that the laws themselves bind us only because they have been approved by the people[13]?’

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Footnote 13:

_Dig._ i. 3. 32, § 1 (cf. _Inst._ i. 2. 11). In the _Institutes_ of
Justinian the Emperor’s legislative power, though complete, is still
grounded on a delegation formerly made by the people.

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It need hardly be observed that if Tribonian and the other commissioners employed by Justinian to condense and arrange the old law had, instead of inserting in their compilation sentences written three or four centuries before their own time[14], taken it upon themselves to state the doctrine of legislative sovereignty as it existed in their own time, they would not have used the language of the old jurists, language which even in the time of those jurists represented theory rather than fact, just as Blackstone’s language about the right of the Crown to ‘veto’ legislation in England represents the practice of a period that had ended sixty years before. But those who in the Middle Ages studied the texts of the Roman law cared little and knew less about Roman history, so that the republican doctrine of popular sovereignty which they found in the _Digest_ may have had far more authority in their eyes than it had in those of the contemporaries of Tribonian, to whom it was merely a pretty antiquarian fiction.

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Footnote 14:

They frequently altered the language of the old jurists to make it
suit their own time, so it is the more noteworthy that the ancient
terms have in this instance not been altered.

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These were the legal notions of Sovereignty with which the modern world started—the sharply outlined Sovereignty of an autocratic Emperor, and the shadowy, suspended, yet in a sense concurrent or at least resumable, Sovereignty of the People, expressed partly in the recognition of their right to delegate legislation to the monarch, partly in their continued exercise of legislation by Custom.

But there was also another influence, born while the autocracy of the early Emperors was passing from the stage of power _de facto_ into that of sovereignty _de iure_, which told with no less force upon the minds of men during the Middle Ages, and also in the later days when a freer philosophy began to attack the problems of political science. While to the educated classes in old Rome the Emperor’s legal Sovereignty bore the guise of a devolution from that of the People, his provincial subjects, who knew little or nothing of these legal theories, regarded it as the direct and natural consequence of Conquest. By the general, probably the universal, law of antiquity, capture in war made the captured person a slave _de iure_. Much more then does conquest carry the right of legal command. Conquest is the most direct and emphatic assertion of _de facto_ supremacy, and as the _de facto_ power of the Romans covered nearly the whole of the civilized world, maintained itself without difficulty, and acted on fixed principles in a regular way, it speedily passed into Legal Right, a right not unwillingly recognized by those to whom Roman power meant Roman peace. This idea is happily expressed by Virgil in the line applied to Augustus—

‘Victorque volentes
Per populos dat iura,’

while the suggestion of a divine power encircling the irresistible conqueror, an idea always familiar to the East, appears in the words

‘viamque adfectat Olympo,’

which complete the passage.

The feeling that the power actually supreme has received divine sanction by being permitted to prevail, that it has thereby become rightful, and that it has, because it is rightful, a claim to obedience, is clearly put in writings which were destined, more than any others, to rule the minds of men for many centuries to come.

‘Let every soul be subject unto the higher powers. For there is no
power but of (= from) God: the powers that be are ordained of God.
Whosoever therefore resisteth the power, resisteth the ordinance of
God: and they that resist shall receive to themselves damnation
(_lit._ judgement). For rulers are not a terror to good works, but to
the evil. Wilt thou then not be afraid of the power? do that which is
good, and thou shalt have praise of the same; for he is the minister
of God to thee for good. But if thou do that which is evil, be afraid;
for he beareth not the sword in vain: for he is the minister of God, a
revenger to execute wrath upon him that doeth evil’ (Rom. xiii. 1-5).

‘Submit yourselves to every ordinance of man for the Lord’s sake;
whether it be to the Emperor, as supreme, or unto Governors, as unto
them that are sent by him for the punishment of evildoers, and for the
praise of them that do well. For so is the will of God, that with
well-doing ye may put to silence (_lit._ bridle) the ignorance of
foolish men’ (1 Pet. ii. 13-15).

Here the authority of the Emperor is not only recognized as being _de iure_ because it exists and is irresistible, but is deemed, because it exists, to have divine sanction, and thus a religious claim on the obedience of the Christian, while at the same time, in the reference to the fact that the power of the magistrate is exercised, and is given by God that it be exercised, for good, there is contained the germ of the doctrine that the Power may be disobeyed (? resisted) when he acts for evil; as St. Peter himself is related to have said, ‘We ought to obey God rather than men’ (Acts v. 29).

These and other similar dicta in the New Testament are not only evidence of the sentiments of Roman provincials under the earlier Empire, but are also the doctrines, delivered under the highest authority, from which mediaeval thought starts. How they are worked out may be seen by examining the reasonings of Dante in his _De Monarchia_, or, still better, the political theories of St. Thomas Aquinas. From the fifth to the sixteenth century whoever asked what was the source of legal Sovereignty, and what the moral claim of the Sovereign to the obedience of subjects, would have been answered that God had appointed certain powers to govern the world, and that it would be a sin to resist His ordinance. From the eleventh century onwards it was admitted in Western Christendom, though less cordially in France, Spain, or England than in Italy and Germany, that there were two Legal Sovereigns, and according to the view more generally held, each was _de iure_ absolute, the Pope in spiritual, the Emperor in temporal matters. Both Pope and Emperor were above all positive secular Law, but subject to the Law of Nature and the Law of God, these being virtually the same[15]. The power of the Pope came immediately from God, through the institution of Peter as chief bishop. The Emperor’s power, almost equally incontestable, had a double origin. According to the New Testament, that power came from God; according to the Roman law, it had been delegated by the people, the ultimate source of civil authority. St. Thomas Aquinas recognizes sovereignty as originally and primarily vested in the people, hardly less explicitly than does the Declaration of Independence. These two views were capable of being combined, and the theory of delegation did not really reduce the Emperor’s authority, for there was no actual people capable of recalling the rights delegated[16]. But there was also another doctrine, according to which the Emperor drew his rights from the Pope, who crowned him, and who as spiritual Sovereign exercised a higher jurisdiction, being responsible for the welfare of the Emperor’s soul. After the days of Pope Gregory the Ninth and the Emperor Frederick the Second, the doctrine held by nearly all churchmen of the inferiority of imperial to papal authority damaged the Emperor’s position. It suffered still more because after those days the Emperor did not rule _de facto_ outside Germany, and not always even within it. Most jurists, however, continued to hold that the rights of the successor of Augustus still existed everywhere _de iure_, though it was admitted that they consisted only in a sort of over-lordship, which, always ineffective in practice, became constantly more evanescent in theory. Controversy continued to rage over the limits to be drawn between them and the parallel sovereignty of the successor of Peter; and this controversy produced in the fourteenth century an anti-ecclesiastical movement represented in literature by such men as Marsilius of Padua and the English Franciscan William Occam. In those writers one finds the germs of the doctrine, afterwards famous, which refers the origin of the State to the free consent of individual men.

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Footnote 15:

See as to the distinction between that part of the Law of God which is
also the Law of Nature and other parts thereof, Essay XI, p. 158.

Footnote 16:

Nevertheless the followers of Arnold of Brescia in Rome attempted to
claim for the Roman people the right of choosing the Emperor; while
there were others who argued that the true representatives of the old
Roman people were to be found in the whole Christian community of the
Empire.

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In these mediaeval controversies it was assumed throughout and on all sides that power _de facto_ must follow Sovereignty _de iure_. But this Sovereignty, although above positive law, being indeed the source of such law, was deemed to be held subject to the Law of Nature, since it is a trust from God. However, as it became more and more clear that the Emperor was ceasing to be an effective ruler, the temporal sovereignty of local kings was fully admitted, and their rights were based partly on the providence of God, which had allowed them _de facto_ power, partly on the feudal relations of lord and vassal, formed by reciprocal promises of protection on one side, of loyal support on the other.