ON SOVEREIGNTY.

The theory of Sovereignty seems to be one of those large generalisations which in different ages of the world's history have exerted an empire over the human mind. Like the cure-all of quack salvers they succeed for a time by the sheer audacity of their pretensions. They are accepted because they seem to explain so much. They become the current medium of intellectual exchange, part of the very forms of thought; and it is only at long last that they are exposed as ungrounded or illogical. Even when some thinker, bolder than the rest, has dealt them a lethal blow, they still spring resurgent, for an error once accepted as dogma is harder to stamp out than a plague become endemic. The history of political science records the rise and fall of many such eidola. The conception of Empire which Rome had realized subsisted in theory long after the Roman State had fallen in fragments. The political writers of the Renaissance formulated the Social Contract theory, which in one or other of its evasive forms, obsessed the human mind for more than three centuries. This in turn has given place to the theory of Sovereignty, just as evasive, just as ill-founded, just as unnecessary. Subjected to a searching analysis all such dogmas will be found to contain in them some grain or grains of truth. Thus, the Social Contract theory derives in part from the simple proposition that all obedience is in the last resort voluntary, for, "utterly without our consent we can be at no man's commandment living." It seems that in certain conditions of the political atmosphere some such grain of solid matter propagated by heat will diffuse as gas, in which state it is apt to be asphyxiating and sometimes dangerously explosive. If the Sovereignty theory has been practically innocuous, it must, none the less, be pronounced logically unfounded, and therefore an embarrassment in the sphere of political thought.

Stripped of its embellishments this theory seems to be as follows: Men, it is said, are found living together in large social aggregates called States, larger than the family, but no more than the family the conscious result of human volition. The very idea of a society postulates certain uniformities of conduct upon which the being and the well-being of

the society depend. Morality consists in the consciousness of such uniformities as rules. Law consists in their formulation and enforcement. The business of formulating and enforcing is called government, and the persons in whom such functions are vested are called the governors of the State. Now, since all States, except the most rudimentary, contain in them the element of government, it is concluded (and this, in particular, is the Sovereignty theory) that in every State (except the most rudimentary) are to be found some persons in whom the prerogative of government is vested. Such persons are commonly described as Sovereign. Law is the command of the Sovereign. Nothing can exist as Law in the State except by the authority of the Sovereign or at all events with the Sovereign's acquiescence. Thence flow as consequences the various corollaries that Sovereignty is unlimited, indivisible, inalienable, and so forth.

This theory, which is to be found in the 16th century in Bodin, and in the 17th century in Hobbes, was proclaimed as gospel by John Austin in his Lectures on Jurisprudence. It is therefore usually described as Austin's theory of Sovereignty, though, as we have just mentioned, Austin was in no sense its inventor. He, however, must be credited with having made it a dogma with the English jurists of the second half of the 19th century.

The Austinian theory, naturally, has not passed unchallenged. It has been pointed out that men have been, and in many parts of the world still are, conscious of rules not merely as rules of morality but as rules of law without any idea of an imposing authority. This is Sir Henry Maine's argument. The neo-Austinian replies that such rules are not law at all. This position precludes further argument. If law is to be what anyone chooses to make it, it is idle to pursue a discussion which can lead to nothing but to an elaboration of the definition. It would be more profitable to enquire whether the rules in question exhibit such fundamental resemblances to other rules which are admittedly law, that they may properly be referred to the same order of phenomena. If this is so, the true criterion of law must be found in those resemblances, and not in enactment or enforcement by authority.

The objection that the theory does not square with facts might surely have prevented its existence, or strangled it at birth, were it not that experience shows that an abstract theory, once conceived by an inventive mind, may exist for long centuries without drawing nutriment from the world. of reality. The Sovereignty theory, it is now admitted, is inapplicable to Federal governments, and, indeed, to any rigid constitutions, while even in applying it to the British Constitution, Austin turns his back upon the Sovereign of the lawyers, the Rex in Parliamento, to find a Sovereign in the King, the Lords and the electors to the House of Commons-a solution which is hardly reconcilable with his fundamental postulates of the nature of Sovereignty. Confronted with this difficulty some modern writers have sought to distinguish the Sovereign de jure from the Sovereign de facto. The first, it is said, is the creature of legal theory, which may exhibit more or less imperfectly the attributes of Austinian sovereignty, which may again, from a shifting of the centre of political stability, be a Sovereign only in name, a roi fainéant, while the true seat of authority must be looked for elsewhere. This elusive presentment, it will be observed, still asserts the sacred dogma of Sovereignty. There must be, we are told, in every State some ultimate and supreme authority-if not here, then somewhere else. It is astonishing that intelligent men should concede to such an argument, astonishing how hard it is to disabuse the mind of an unfounded hypothesis.

Evidently there is some reason for the persistency of such a notion. The reason will be found in the grain of truth out of which the theory has grown. It seems to be an infirmity of the mind to conceive as concrete facts distinctions which are only true as abstract ideas. We distinguish in thought the idea of rule and of obedience to rule. The conception is slightly, but only slightly more concrete, when we speak with Aristotle of the ruling element, "that which rules," and of the subject element, "that which is ruled," as essential elements in the constitution of the State. It is a short step further but a fatal one, when we incarnate this abstraction government' in a person or persons whom we term Governor or Sovereign, while all other persons are termed Governed or Subject. The fault lies, not in recognising the patent fact that in every State there are persons

who rule and persons who obey (though of course, the rulers are also obeyers and the obeyers are also rulers), but in predicating of the first all that is implied in the abstract notion of government, and deducing therefrom the corollaries of Sovereignty as unlimited, impartible, etc., which, if asserted of governmental functions as exercised by this man or by this body of men, are demonstrably false. In much the same way the logical necessity of viewing consent as inseparable from the idea of the State, degenerated into the error of regarding consent as historically antecedent to the State and so gave birth to the fallacious doctrine of a Social Contract.

If we are to reason correctly about politics we must disabuse our minds of such prepossessions. A better view would be to think of government or of Sovereignty (if we are to use the word) not as the attribute of a specific person or body of persons, so that we can say "Lo, here is Sovereignty, or Lo, there," but rather as the animating force, which diffused through the State, is the source of its activity. Each individual in his place and in his degree according to his powers of mind and force of character acts upon his surroundings, that is, upon the other units of the social group of which he forms a part. Sovereignty is the sum total, perhaps more correctly the combined result, of individual forces. It is a thing subtle, impalpable, infinitely volatile. In such a tumultuous conflict the forms and instruments of government, the powers of governors, are "like the bubbles on a river, sparkling, bursting, borne away." The rulers of the moment are tolerated, their powers assigned them by the Society to which they belong, which also determines the extent and nature of their functions. But the law of flux is the condition of human institutions. To predicate sovereignty of things so ephemeral and insubstàntial is as if one should attribute divinity to the work of men's hands. If the conception of Sovereignty here expressed is correct, it is plain that the Austinian theory cannot stand, nor any definition of law which includes Sovereignty as one of its terms. But the definition of law lies outside the scope of this paper.

R. W. LEE.

CORRESPONDENCE.

66

Costs."

DEAR MR. EDITOR,

Even while enjoying a very welcome vacation, it seemed quite refreshing to read the ably-written article in the July number of the CANADIAN LAW TIMES on the ever-interesting subject of "Costs," and none the less so because one's views on that subject happen to differ rather widely from those to which the unnamed author has given expression; and in this connection I have thought the following observations might prove acceptable for further consideration.

It may be conceded in the first place that costs are in the nature of "an indemnity for an expense necessarily incurred in enforcing a legal right, or resisting an unfounded claim," and, in the absence of special circumstances, costs do, in fact, follow the event. But it is equally true that the very existence of the discretionary power now and for a long time vested in the Courts in regard to the disposition of the question of costs in all cases, is entirely inconsistent with the suggestion that they should be dealt with on legal principles or as a legal issue purely as this at once means the elimination of all discretion. I am aware that the author does not in terms, go this length, but he does put such a proposition coupled with the words "except in the most flagrant and exceptional cases." (See the concluding lines of the article.) It is quite conceivable that, whatever the proper basis be for the disposition of the question of costs, the cases in which costs should properly be denied the successful party may well be or become so numerous as not to be in any sense "exceptional." What cases, then, would the learned writer deem so "flagrant" as to warrant the exercise of the statutory discretion in question? In other words, what are the circumstances which should be present? The learned author, while attacking in some measure the basis or bases adopted by the judges, does not suggest any other basis, except to say that all such cases should be "flagrant" and "exceptional." How "flagrant"? and be" how "exceptional"? The good purpose served by the article is, no doubt, to open the way to discussion on an

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