Part 3

If you know what you are looking for and are not expecting to find it advertised in the newspapers, but lying somewhere beneath the surface of things, the dullest fool may often help you to its discovery. It needs a good nose to do the thing, but look how excellent is the game to which a casual scent may bring you in such a domain as the study of politics. There are whole worlds of fact waiting to be discovered by inference. Do not expect to find the life of constitutions painted in the great ‘standard authorities,’ but, following with becoming patience their legal anatomy of institutions, watch their slightest movement toward an illustrative foot-note, and try to find under that the scent you are in quest of. If they cite an instance, seek the recital of the same case elsewhere, where it is told with a different purpose; if it promise well there, hunt it further still, and make sure you catch every glimpse it affords of men’s actual dealings with government. If your text mention names of consequence, seek them out in biographies, and scan there the personal relations of men with affairs, for hints of the methods by which governments are operated from day to day. You will not need any incentive to read all their gossip, in letters and journals, and so see governors as men; but do more: endure official interviews and sessions of Parliament with them; collate their private letters and their public despatches--there’s no telling when or where you shall strike fresh trails of the game you seek. Interview judges off the bench, courtiers away from court, officers off duty. Go to France and live next door a prefect in the provinces; go to London and try to find out how things of weight are talked about in the smoking-room of the House of Commons.

Such excursions must, of course, lead the student far afield; he will often get quite out of sight of his starting-point, the ‘standard authority;’ but he will not on that account be lost. The fact is, that all literature teems with suggestions on this topic of politics. Just as the chance news item, the unstudied traveller’s reminiscence, the passing social or financial scandal,[A] and every hint of any present contact of men with law or authority, illuminates directly, or by inference, the institutions of our own day, similar random rays thrown across the pages of old books by the unpremeditated words of writers quite guiltless of such instructive intent may light up, for those who are alert to see such things, the most intimate secrets of state. If it be beyond hoping for to find a _whole_ Greville for every age of government, there may be found Grevillian scraps, at least, in the literature of almost every time. From men as far back and as well remembered as Cicero, down to men as recent and as easily forgotten as several who might be named, politicians have loved to explain to posterity the part they took in conspicuous affairs; and that portion of posterity which studies politics by inference ought to be profoundly thankful to them for yielding to the taste.

[A] Did not the Dilke trial in London, for instance, help us to understand at least one influence that may sometimes make a lawyer Home Secretary?

Approach the life of States by such avenues, and you shall be convinced of the organic nature of political society. View society from what point you will, you always catch sight of some part of government; man is so truly a ‘political animal’ that you cannot examine him at all without seeing the points--points of his very structure--whereat he touches and depends upon, or upholds, the State.

In 1850, while Governor-General of Canada, Lord Elgin writes to Lord Grey:

“Our Reciprocity measure was pressed by us in Washington last session, just as a railway bill, in 1845 or 1846, would have been passed in Parliament. There was no Government to deal with, ... it was all a matter of canvassing this member of Congress or the other.”[B]

[B] Letters and Journals of Lord Elgin, p. 121.

What? “No Government to deal with?” Here’s a central truth to be found in none of the ‘standard authorities,’ and yet to be seen by a practised diplomatist all the way from Canada. About the same date M. Bacourt came to this country to represent the French Government and be made wretched by the crude deportment of the Americans. His chief concern was to get away to some country where people were less unconventionally at their ease in drawing-rooms; but he turned, when necessary, to the business of his legation; and whenever he did so he found that “here diplomatic affairs are not treated as everywhere else, where we communicate with the Minister of Foreign Affairs and arrange the matter with him alone.” He must ‘arrange’ the matter with several committees of Congress. He must go to see Mrs. Kennedy and Mrs. Winthrop, whose “husbands are members of the House of Representatives, and on the committee having charge of commercial affairs, in which” he “is interested,” for “they say that these gentlemen are very particular about visits from foreign ministers to their wives.”[C] Just Lord Elgin’s testimony. Again the ‘standard authorities’ are added to, and that in a quarter where we should least expect to find them supplemented. We need despair of no source.

[C] Souvenirs of a Diplomat, pp. 189, 281.

These are only near and easily recognized illustrations of the errant mode of study I am expounding and advocating. Other systems besides our own receive similar chance illumination in the odd corners of all sorts of books. Now and again you strike mines like the “Mémoires of Madame de Rémusat,” the “Letters” of Walpole, or the “Diary” of a Pepys or an Evelyn; at other periods you must be content to find only slender veins of the ore of familiar observation and intimate knowledge of affairs for which you are delving; but your search will seldom be altogether futile. Some newly opened archive office may offer _cahiers_, such as revealed to de Tocqueville, more than all other records, the _ancien régime_. Some elder Hamerton may tell you of the significant things to be seen ‘round his house.’ All correspondence and autobiography will repay perusal, even when not so soaked in affairs as the letters of Cromwell, or so reminiscent of politics as the “Memoirs of Samuel Romilly.”

Politics is the life of the State, and nothing which illustrates that life, nothing which reveals any habit contracted by man as a political animal, comes amiss in the study of politics. Public law is the formal basis of the political life of society, but it is not always an expression of its vital principle. We are inclined, oftentimes, to take laws and constitutions too seriously, to put implicit faith in their professions without examining their conduct. Do they affect to advance liberty, for instance? We ought to go, in person or in imagination, amongst the people whom they command, and see for ourselves whether those people enjoy liberty. With reference to laws and constitutions of our own day, we can learn such things best by supplementing books and study by travel and observation. The best-taught class in modern public law would be a travelling class. Other times than our own we must perforce be content to see through other men’s eyes.

In other words, statute books and legal commentaries are all very well in the study of politics, if only you quite thoroughly understand that they furnish only the crude body-colors for your picture of the State’s life, upon which all your finer luminous and atmospheric effects are afterwards to be worked. It is high time to recognize the fact that politics can be effectually expounded only by means of the highest literary methods. Only master workers in language and in the grouping and interpretation of heterogeneous materials can achieve the highest success in making real _in words_ the complex life of States. If I might act as the interpreter of the new-school economists of whom I have already spoken, I trust with due reverence, I should say that this is the thought which, despite their too frequent practical contempt for artistic literary form, is possessing them. John Stuart Mill and Ricardo made a sort of logic of political economy; in order to simplify their processes, they deliberately stripped man of all motives save self-interest alone, and the result was evidently ‘_doctrinaire_’--was not a picture of life, but a theorem of trade. Hence “the most dismal of all sciences;” hence Sidney Smith’s exhortation to his friend not to touch the hard, unnatural thing. The new-school economists revolt, and say they want “a more scientific method.” What they really want is a higher literary method. They want to take account of how a man’s wife affects his trade, how his children stiffen his prudence, how his prejudices condition his enterprise, how his lack of imagination limits his market, how strongly love of home holds him back from the good wages that might be had by emigration, how despotically the opinion of his neighbors forbids his insisting upon a cash business, how his position in local society prescribes the commodities he is _not_ to deal in; in brief, how men actually do labor, plan, and get gain. They are, therefore, portentously busy amassing particulars about the occupations, the habits, the earnings, the whole economic life of all classes and conditions of men. But these things are only the raw material of poetry and the literary art, and without the intervention of literary art must remain raw material. To make anything of them, the economist must become a literary artist and bring his discoveries home to our imaginations--make these innumerable details of his pour in a concentrated fire upon the central citadels of men’s understandings. A single step or two would then bring him within full sight of the longed for time when political economy is to dominate legislation.

It has fallen out that, by turning its thoughts toward becoming a science, politics, like political economy, has joined its literature to those books of _natural_ science which boast a brief authority, and then make way for what is ‘latest.’ Unless it be of the constitution of those rare books which mark an epoch in scientific thought, a ‘scientific work’ may not expect to outlive the prevailing fashion in ladies’ wraps. But books on politics are in the wrong company when they associate with works among which so high a rate of mortality obtains. The ‘science’ proper to them, as distinguished from that which is proper to the company they now affect, is a science whose very expositions are as deathless as itself. It is the science of the life of man in society. Nothing which elucidates that life ought to be reckoned foreign to its art; and no true picture of that life can ever perish out of literature. Ripe scholarship in history and jurisprudence is not more indispensable to the student of politics than are a constructive imagination and a poet’s eye for the detail of human incident. The heart of his task is insight and interpretation; no literary power that he can bring to bear upon it will be greater than he needs. Arthur Young’s way of observing, Bagehot’s way of writing, and Burke’s way of philosophizing would make an ideal combination for the work he has to do. His materials are often of the most illusive sort, the problems which he has to solve are always of the most confounding magnitude and variety.

It is easy for him to say, for instance, that the political institutions of one country will not suit another country; but how infinitely difficult is it to answer the monosyllables How? and Why? To reply to the Why he must make out all the contrasts in the histories of the two countries. But it depends entirely upon what sort of eye he has whether those contrasts will contain for him vital causes of the effect he is seeking to expound. He may let some anecdote escape him which gleams with the very spark needed to kindle his exposition. In looking only for grave political facts he may overlook some apparently trivial outlying detail which contains the very secret he would guess. He may neglect to notice what men are most talked about by the people; whose photographs are most frequently to be seen on the walls of peasant cottages; what books are oftenest on their shelves. Intent upon intrigue and legislation, he may pass over with only a laugh some piquant gossip about legislator or courtier without the least suspicion that it epitomizes a whole scheme of government. He may admire self-government so much as to forget that it is a very coarse, homely thing when alive, and so may really never know anything valuable about it. The man who thinks the polls disagreeable and uninteresting places has no business taking up a pen to write about government. The man who despises the sheriff because he is coarse and uncouth, and who studies the sheriff’s functions only from the drawing-room or the library, will realize the life of government no better than he realizes the vanity of ‘good form.’

If politics were to be studied as a great department of human conduct, not to be understood by a scholar who is not also a man of the world, its literature might be made as imperishable as that of the imagination. There might then enter into it that individuality which is immortality. That personal equation which constitutes the power of all books which have aught of force in them would then rescue books on politics from the dismal category of ‘treatises,’ and exalt them to the patriciate of literature. The needed reaction against the still ‘orthodox’ methods of discoursing upon laws and constitutions, like that already set afoot against the ‘orthodox’ political economists, should be a ‘literary movement’--a movement from formalism to life. In order really to know anything about government, you must _see it alive_; and the object of the writer on politics should be nothing less than this, to paint government to the life, to make it live again upon his page.

III

POLITICAL SOVEREIGNTY

The conception of political sovereignty is one of those interesting portions of doctrine which belong in common to several distinct branches of study. No systematic discussion of any part of the science of politics can advance very far without it; and it is even more indispensable to the student of legal systems than to the student of politics. It is a question central to the life of states and to the validity of law.

And it is rendered the more interesting by the fact that it is a critical question, used by all schools alike as a capital test of orthodoxy. No man who cares a whit about his standing among students of law or of politics can afford to approach it lightly. Whatever he says about it he must needs say with a profound sense of responsibility. He must undertake the discussion of it with the same sort of gravity, with the same deep sense of personal risk, that the political economist evinces when he ventures an opinion about Value or hazards a theory of Distribution. When once he has committed himself to an opinion concerning it, he may be sure that with a large and influential number of his fellow-students he can never thereafter pass for a man of undoubted scholarship or unclouded sense.

If it is awkward, under such circumstances, that the conception should be so indispensable, it doubtless has the advantage of forcing boldness upon us. If for nothing else than for the sake of a _modus vivendi_, we must out with whatever notion it is that we have accepted or invented with reference to the nature and lodgement of sovereignty. It is, on the whole, safer to be explicit than to hedge.

And yet it is not easy to be explicit; for there are no suitable terms to be explicit with. One no sooner begins to examine the field and the matter of controversy than he begins to suspect that it is all a question of terminology. After being hurried in bewilderment through one of Browning’s short poems without being permitted to be quite sure at any point of the full meaning, we are led in our disappointment to wonder, with Mr. Birrell, if it can be the punctuation. In what we read of sovereignty we are led to wonder if it can be the _words_ that confuse us. It must be evident to every one who has not been sophisticated by the terms themselves, or committed beyond retrieval by the controversial use of them, that when, for example, the people of the United States and the Czar of Russia are put together in the same class as sovereigns, language has been forced to a very artificial use, and one term made to cover radically different things. There is clearly a striking contrast between these two sovereigns, in character, in method, and in power. Doubtless an excellent way by which to enter our subject would be through an examination of this difference. But another way is more direct.

Let us begin with an accepted definition of sovereignty. It is both decent and convenient to take that of Austin, that celebrated definition which he received through Bentham from Hobbes. Austin conceived a sovereign very concretely, as a person or body of persons existing in an independent political society and accorded the habitual obedience of the bulk of the members of that society, while itself subordinate to no political superior. Law he defined to be the explicit or implicit command of such a person or body of persons, addressed to the members of the community, its inferiors or subjects. He took it for granted that in every independent community supreme political authority did actually vest in some such determinate sovereign person or body of persons.

By the very term used to describe it, moreover, this sovereignty is supremacy--is subject to no limitation. Every law is a command, not only, but the command of a supreme authority; and it would be a singular contradiction in terms to speak of this supreme power as limited by law. How can the supreme author of law within a state himself be subject to law: how can the creature bind the creator? How can one refrain from smiling at the logical incapacity of those who speak of limitations to sovereignty, or, more absurdly still, of divisions of sovereignty? Is there a hierarchy of supremacies: can there be a co-ordination of creators?

Austin had studied in Bonn while it was the residence of such men as Niebuhr, Schlegel, Arndt, Welcher, Mackeldey, and Heffter, and at a period when controversy touching some of the fundamental questions concerning the province and method of jurisprudence was in its keen youth. His thought was mature, indeed, before he went abroad, and nature had very imperatively commanded of what sort that thought should be by giving him a mind framed for abstract conception and sharp logical processes; but contact with German thinking contributed many important elements to his mental equipment. Thibaut became scarcely less his master than Bentham. It was inevitable that it should be Thibaut rather than Savigny. Savigny believed that all law was rooted in old habit, and that legislation could modify law successfully and beneficially only by consenting to the secondary _rôle_ of supplementing, formulating, or at most guiding custom. He was at weapons drawn with the school of Thibaut, which proposed to lay legislative hands on the entire body of German law, make a code which should be common to all the German States, and so help to make Germany a national unit. To attempt thus to systematize law, where by natural development it was unsystematic, seemed to Savigny a deliberate effort to render it artificial. Law, he maintained, did not often grow into a logical system, but was the product of daily accretions of habit and sluggish formations of thought, which followed no system of philosophy. It was not the business of legal science to force it into logical categories; it was its function, rather, to give a clear explanation of the principles and order of its life and a satisfactory working analysis of its several parts and conceptions. Thibaut, on the other hand, believed it to be the legitimate function of the jurist to make piecemeal law up into organic wholes, rendering it clear where it had been obscure, correcting its inconsistencies, trimming away its irregularities, reducing the number of its exceptional provisions, discovering and filling in its gaps, running it through with threads of system, giving it elegance of style and completeness of method. He thought it possible to change law from a system of habits into a system of commands. These were, of course, the ideas which were most attractive, most congenial, to the mind of Austin.

But, however natural such conceptions may have been to Austin, it must certainly be regarded as singular that, although rejected on the Continent, where sovereignty had throughout the most important formative periods of European history been quite unequivocally lodged in unmistakable sovereigns, these notions should have been accepted in England, the land where law had been least subject to doctrine, most observant of times and circumstances, most piecemeal in its manner of construction, least like a set of commands, and most like a set of habits and conventions. Doubtless we are to remember, however, that the feudal theory of law had long been held with perfect confidence by English lawyers in calm despite of fact. Probably it is true that the English mind (our own), with its practical habit, likes nice systems well enough because of their appearance of completeness, has a sense of order which enjoys logic, without having any curiosity or capacity for the examination of premises. The Englishman has always been found ready to accept, from those who had the leisure to amuse themselves in that way, interesting explanations of his institutions which did not at all fit the actual facts. It has caused him no inconvenience, for he has not perceived the lack of adjustment between his actual transactions and the theory he has accepted concerning them. He has, of course, not troubled himself to alter his institutions to suit his philosophy. That philosophy satisfied his thought and inconvenienced neither Parliament nor the law courts. And so he had no doubt Austin was right.

Austin’s logic is unrelenting, and the loyalty of his followers unflinching. Sir Henry Maine having shown that throughout the greater part of history the world has been full of independent political societies possessing no law-making sovereign at all, and it having become notorious that legislation has everywhere played a late and comparatively subordinate part in the production of law, the latest writers of the Austinian school have reduced jurisprudence to a merely formal science, professing to care nothing for the actual manner in which law may originate, nothing even for most of the motives which induce men to obey law, provided you will but concede that there is, among a great many other imperative motives, one which is universally operative, namely, the fear of the compulsion of physical force, and that there is at least one sovereign function, namely, the application of that physical force in the carrying out of the law. They ask to be allowed to confine themselves to such a definition of positive law as will limit it to “rules which are _enforced_ by a political superior in his capacity as such.” They take for their province only a systematic description of the forms and method “of the influence of government upon human conduct” through the operation of law. They thus virtually abandon the attempt to find any universal doctrines respecting the _rôle_ of government as a _maker_ of laws. For them government is not a creative agent, but only an instrumentality for the effectuation of legal rules already in existence. So hard is the principle of life to get at that they give over all attempts to find it, and, turning away from the larger topics of the biology, restrict themselves to the morphology, of law.