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 JEAN BODIN ON SOVEREIGNTY.

WITH SOME REFERENCE TO THE DOCTRINE OF THOMAS

HOBBES.

THE of EnglandsinceBen-
politicaland legal philosophy
tham has done much for the fame of Thomas Hobbes.
Reverential hands have placed the sage of Malmesburyon a
pinnacle where his peculiar genius may receive its due honor.
It was a characteristicfreakof fate that committedto Austin
and Molesworth and Grote, chiefs of modern radicalism, the
task of securing proper recognition for the most resolute
defenderof absolute monarchy. The work,however,was well
done, and to-day English politics and jurisprudence alike
look to Hobbes as their philosophical progenitor. His devo-
tion to the cause of monarchyis justly regardedas accidental
rather than essential in his general theory. Quite apart
from this incidental feature, the solid and enduring sub-
stance of his system is his doctrine of sovereignty-of the
ultimatenature of political and legal authority. The mathe-
matical precision of his analysis in this field forms a most
striking contrast to the confused thinking of most of his
contemporaries,and the English school of positive law has
done little more than develop the conceptionswhich he clearly
defined.
The veneration of Hobbes by his countrymenis thus jus-
tifiable. But though his work in the developmentof political
science was great and significant,it is quite wrong to suppose
that the historyof the theorywithwhichhis name is associated
begins withhim. ThoughtfulEnglishmennowadayssometimes
concede the insularityof their national character. It is this
quality, probably, that accounts for the common neglect of
Hobbes's continental forerunner. The same tendency is at
work in the common ascription of the theories of the social
contractand of popular sovereigntyto the writersof the Puri-
 JEAAT BODIN ON SOVEREIGTY. 83

tan revolutionin England. As a matterof fact,theseideas

playeda greatr6le on the Continentseventy-five years before
theyassumedprominence in GreatBritain.' The Anglo-Saxon
spirit,however,is not historical. The applicability, not the
origin,of politicalideas,has for it the greatestinterest. It
wouldnot be rashto assertthat a majorityof intelligentand
ordinarilycultivatedAmericansbelievethatThomas Jefferson
inventedthe theoryof naturallibertyand equalitywhichis
expressedin the preambleto the Declarationof Independence;
and probablyGeorgeIII wouldget an easy recognition as the
leadingexponentofthetheoryof absolutemonarchy.The his-
toryof politicaltheories,as a fruitful branchof philosophical
generalhistory,has notyetreceivedmuchattention fromEng-
lish-speakingpeoples. ProfessorPollock'sexcellentbut inade-
quate Historyof theScienceof Politics,2is the onlysystematic
workin thelanguagethatI knowof. Sketchyas it is,however,
it opensup in everydirectionvistas that lead the readerfar
beyondthe historyand the literatureof England. Not the
least importantof its suggestionsis this: that in the religious
and politicalchaosof the Continent, and especiallyof France,
duringthe sixteenthcentury, weremouldedintoformboththe
theoryof absolutemonarchy and that of popularsovereignty.
EnglandundertheTudorshad thepractice, butnotthetheory,
1 Cf. Professor H. L. Osgood, "The Political Ideas of the Puritans,"in the
POLITICAL SCIENCE QUARTERLY, VI, I (March, I89I). It is by no means
intended to intimate that these ideas cannot be traced fartherback than the
sixteenthcentury. Sir Robert Filmer,whose Patriarcha Locke and the modern
Zeit,geisthave combinedto renderrather ridiculous,was yet on solid historical
ground when, speaking of the theoryof popular sovereignty,he attributedits
developmentto the schoolmen," who, to be sure to thrustdown the kingbelow
the pope, thoughtit the safest course to advance the people above the king"
(Patriarcha,I, I, end). And the influenceof the classical writersin mouldingthe
theoriesof the schoolmen is well known. For the early historyof the social-
contractidea, cf. Mr. D. G. Ritchie,in thisQUARTERLY, VI, 656 (December,I891);
also in his collectedessaysentitledDarwinand Hegel (Sonnenscheinand MIacmillan,
I893).
2 Macmillan,I890. This little sketchof 126 small pages, coveringthe whole
fielddown to moderntimes,presents a significantcontrastto Janet'stwo-volume
Histoire de la Science Politique, which ends with the eighteenthcentury,to
Bluntschli's excellentGeschichte der Neueren Staatswissenschaften, and to the
encyclopadic workof von Mo}l.
84 POLITICAL SCIENCE QUARTERLY. [VOL. XI.

of absolute monarchy. Hobbes completed a rational theory

just as the practice finallyended. In France the Huguenot
writers developed the theory of popular sovereignty which
triumphedin England; but when order came in their own
land the political question was settled on the lines of absolute
monarchy. And the writer who formulatedthe theorywhich
thus gained practical ascendency bore the name of Jean Bodin.
In this article I propose to examine some of the more promi-
nent featuresof Bodin's political thought,and particularlyhis
theoryof sovereignty. In comparing his views with those of
Hobbes a sufficientresemblance may appear to attractatten-
tion. But it is not at all necessary to conclude that the
Englishman slavishly followed the earlier writer. A very
superficialknowledge of Hobbes's intellectual equipment will
sufficeto absolve him from the suspicion of subserviencyto
the thoughtof another; and the differencesbetween the two
men in method and in general philosophic feeling are as
marked as the similarityin some of their conclusions. The
objective political conditions amid which they lived, however,
were in many repects similar,and conspired to lead them to
the same solution for theirrespectiveproblems. Hence, from
differentstarting-pointsand by different routes, the two
reached the same goal. But Bodin preceded Hobbes in time;
and it is no discreditto the latter to conjecture that the work
of the former played some part in determiningthe type of
his philosophy.

The dates which mark the limits of Bodin's life, 1530 and
1596, suggest at once the turmoilof his political environment.
It was the period that witnessed the extinctionamid imbecility
and crime of the house of Valois. The forces of feudalism;
revivedunderdecliningroyalauthority, and those ofreligiousani-
mosity,stimulatedby the Reformation,reduced France to anar-
chy. Imminentor actual civil war was forfourdecades the pre-
vailingcondition. It was the timeof the Guises, of Catherinede
No. i.] JEAN BODIN ON SOVEREIGNTY. 85

Medici, of St. Bartholomew's, and of the League. French

historyat this period presents the Gallic version of the Wars
of the Roses and the Puritan revolution. France combined
the outburstswhichEngland separated by nearlytwo centuries.
In the civil and religious strifeof the times,Bodin was fitted
neitherby character nor by training to be a violent partisan.'
His temperamentwas altogether scholarly and philosophical.
So far was he fromsharing in any of the religious prejudices
which played so large a part in the prevailingtroubles,that it
is not known to this day preciselywhat his creed was.2 He
was educated as a lawyer,but lacked the spirit of the practi-
tioner. Seeking his fortuneat Paris (he was born at Angers),
he seems to have had no success at the bar; but his first
published work3 brought down upon him promptlythe wrath
of no less a personage than Cujas, the acknowledged leader of
French jurists at thattime. For Bodin, regardinglaw fromthe
standpoint of universal history,was outspoken in criticising
the exclusive study of the Roman law which was characteristic
of his day; and Cujas was scandalized at his heresy. Bodin's
ability soon brought him into connection with the court,
and most of his life was spent in the public service. Fully
informedas to the forcesat work in the political conflictsof
the time, he set himself resolutelyagainst all disintegrating
tendencies. With the Chancellor L'Hopital, and the other
distinguished thinkers who came to bear the party name of
Les Politiques, Bodin sought to restraineveryfaction,whether
Catholic or Huguenot, whether Guise or Bourbon, and to

1 All desirableinformationas to thepersonalityof Bodin,as well as an admira-

ble analysisof his worksand of the politicaltheoriesof his contemporaries, may
be found in the exhaustive work of Henri Baudrillart,J. Bodin et son Temps
(Paris, I853).
2 The inconveniencesof the philosophicalattitudein his day are illustratedby
the fact that Bodin was assailed at differenttimes as a Catholic,a Calvinist,a
Jew,a Mohammedanand an atheist. His Hleptaplomeresis a remarkablework,
in the formof a dialogue between representativesof seven religiousand philo-
sophical creeds,witha stronglytheistictendency. Cf Baudrillart,p. I90.
8 Methodusad facilemIlistoriarumCognitionem(I 566). The workembodies
in outlinea philosophyof law and a philosophyof history. Its generallines are
those of Montesquieu'sEsprit des Lois.
86 POLITICAL SCIENCE QUARTERLY. [VOL. XI.

centerauthorityin the monarch. The Machiavellian methods

of Catherine de Medici and her infamousoffspringlong ren-
dered impracticablethe policy of the moderates; but it was to
the latter that was due ultimatelythe accession of Henry IV.
In the great mass of literaturewhich the civil wars called
forththere was rarelyto be found any defense of absolute royal
power. Huguenots and Catholics alike proclaimedin vehement
termsthe dogmas of popular sovereigntyand tyrannicide. The
criteria of tyrannywere, of course, contradictory. To the
Calvinistthe plottingof St. Bartholomew'swas a mostconclusive
test; to the Papist, the desertion of the League. Equally
diverse and confusing were the theories as to the authority
which should act in decreeing the deposition of the tyrant.
Was this power in the general body of his subjects, in the
privilegedclasses, in the estates, in the parliaments,in foreign
rulers, or in the pope? Each of these solutions had its
advocates, but none of them carried conviction beyond a
relatively small circle of supporters. The times were not
suited to close logic and exact thinking. Controversy,not
philosophy,was uppermostin men's minds; passion,not reason,
was the animatingforce. It was amid the chaos of thoughtand
feeling which this literature reveals that Bodin's Republzi
appeared, clearly distinguishedfromits contemporariesby the
philosophic serenityof its spirit,the scope of its learning,the
precision of its analysis and the exactness of its logic. The
book is characteristicof its author. Bodin, like Hobbes sixty
years later, could find no firmfooting in the theories of the
factions. He felt the need of a system that should embody
somewhere a clear and unquestionable source of authority.
His historicaland philosophical training furnishedhim with a
method; his study of Aristotle suggested the outline of his
work; his juristic training and experience guided him in the
detection and elaboration of refined legal distinctions; and
the necessity of the times dictated his triumphantpresentation
of an exact theoryof sovereignty.'
1 The practical ends that Bodin had in view are very clearlystated in the

dedicatoryprefaceof his Republic.

No. I.] JEAN BODIN ON SOVEREIGNVTY 87
One need only recall that Hobbes's De Cive appearedin
I647 and his Leviathan in i65i, to realize how closelythe
generalconditionsamid whichhe wroteparalleledthosethat
surrounded Bodin.1 Englishand ScotchPuritansweredeclaim-
ing as vigorously againsttyranny as had theHuguenotsbefore
them,and wereevenmorevigorously resistingthetyrant;the
Parliament at Londonwas imposingpracticalrestrictions upon
the monarchmore effectively than had been done by the
French Estates-General; and in the literatureof the time
there was no less of passion and no moreof clear-cutand
generallyaccepteddoctrinethantherehad been at the timeof
St. Bartholomew's. Hobbes publishedhis politicaltreatises
whilein exile. The meetingof the Long Parliament had been
too muchforhis none too steadynerves,and he had gone im-
mediatelyto France, "the firstof all thatfled,"as he himself
candidlyconfesses.2 In Paris he lived in close relationswith
the royalistcolony,and for a time acted as instructor to the
futureking,CharlesII. Like Bodin, thus, he was identified
with the royalistpartyin a time of civil dissension. Like
Bodin,he wrotehis philosophy of politicsforthe explicitpur-
pose of attainingexactnessin the conceptionsof state and
sovereignty.3
But whenwe considerthe philosophical methodsof thetwo
writers, we are confronted withthe widest possibledivergence.
In Bodinappearsthe lineal successorof Aristotleand Machia-
velli and the forerunner of Montesquieu, -the thinkerwho
seeksfromtheresultsof man's experience socialandpolitical
in
lifeto generalizethe principlesupon whichthatlifedepends.
The pages of the Republicare crammedwithhistoricallore
fromeveryage and clime,and the scienceof the stateappears
in the fullestsense as an inductivescience. Hobbes,on the
otherhand,is thoroughly imbuedwiththe spiritthatbrought
1 Though Hobbes seems to have thoughtout the general principlesof his

politicalphilosophybefore the civil war in England, the precise formulationof

his theorywas undoubtedlyinfluencedby the eventsof that war. Cf. article
"Hobbes," by Prof.Croom Robertson,in Encyc. Brit.,gth ed.
2 Works, Molesworth'sedition,1840, IV, 414.
letterto the Earl of Newcastle,Works, vol. iv.
8 Cf. introductory
88 POLITICAL SCIENCE QUARTERLY. [VOL. XI.

forthin his day such astonishing resultsin physicsand mathe-

matics. To him geometrywas the onlytrue science; 1 and
the exactnessofits methodand conclusionscouldalone satisfy
his mind. Accordingly the Leviathanrevealsno such arrayof
eruditionas swellsthe volumeof the Republic. There appear
insteada series of definitions in whichthefundamental con-
ceptsof science are formulated and distinguished withaston-
ishingacuteness; andfromthesedependsa chainof deduction
so close and cogentas to bear the reader helplesslyto the
philosopher'sconclusions. The criticwhoseeks to assail the
systemof Hobbes at any point in its development mustbe
bold indeed. Like Euclid, he can be attackedonly in his
premises. His politicalwritingsare quite bare of historical
references. He reststhe successof his theorieswhollyon the
intellectualconvictionthathis abstractreasoningabouthuman
naturemusteffect;whileBodin dependsuponthe interpreta-
tionof the concretefactsof man'sexperience.
At one pointthe twophilosophers comeon commonground,
and that is, in their positionwith referenceto the use of
authority. Both are true representatives of theRenaissance,
and so have greatcontempt forthe methodsof the schoolmen.
Bodin complainsof the hopeless diversityof views among
thosewhohave writtenon politics,and concludesthatit is not
worthwhile to waste timein weighingauthorities.2Hobbes
never loses an opportunityto express his disdain for the
schoolmen,and indeed for any one "who takes up con-
clusionson the trustof authors,and dothnotfetchthemfrom
the firstitemsin everyreckoning, whichare the significations
of names settled by definitions."3 Those who depend on
authority maybelieve,but theycannotknow.

1 " Geometry,which is the only science that it hath hithertopleased God to

bestow on mankind."- Leviathan,ch. iv.
2 " Quaerendumputavimus,non quid quisque dixeritaut senserit,quantaeque

posset et sententiaesuae dicere."

auctoritatisfuerit,sed quid rationiconvenienter
De Republica Libri Sex, Praefatio(Francofurti,I641).
8 Leviathan,ch. v, et passim. Hobbes had great confidencein reflectionas
contrastedwithreading. He said that if he spentas much timeas othersdid in
reading,he would be as ignorantas they.
No. I.] JEAN BODIN ON SOVEREIGNTY. 89

II.
In laying the foundationsfor his discussion of sovereignty,
Bodin follows pretty closely the lines of Aristotle's Politics.
The social basis and philosophicalend of the state; the analysis
of the family and the distinction between family and state;
the characteristicsof paternal authorityand the institutionof
slavery,-are all treated in a mannerthat stronglysuggests
the Greek precursor. But it cannot be said that Bodin is sub-
servient to the Stagirite in his conclusions. He is too true to
the Aristotelian method to attain Aristotelian results. In
philosophy based on history,the accident of chronologry must
profoundlyaffect differentsystems. The later writer has
necessarilymore historyfromwhich to generalize. Nineteen
centuries separated Bodin from Aristotle- centuries replete
with strikingsocial and political phenomena. That any of the
Greek's principles could be approved by the Frenchman, is
a great tribute to the former's genius ; that so many were
modifiedor rejected, is the surest basis for the renownof the
latter. The influenceswhich are most apparent where Bodin
diverges fromAristotle are those of Roman history and law,
Jewishtraditionand recent European history.
It is not my purpose to dwell on all the interestingfeatures
of the Republic outside of the doctrineof sovereignty. Some
of the more striking may be mentioned in passing. The
author formtulatesat the outset a definitionof the state (res-
pueblica) which suggests the most conspicuous characteristics
of his philosophy. "The state is an aggregationof families
and their commonpossessions, ruled by a sovereignpower and
by reason." I In this is implied,what the later chapters elab-
orate, that the basis of the state,both in historicaland in logical
development,is the family; that a distinction must be drawn
between interests that are common and those that are not;
that a supremepower is essential to the idea of the state; and
that governmentis conditioned by a moral end. By rational
1 " Respublica est familiarum summapotes-
rerumqueinteripsas communium,
tate ac rationemoderatamultitudo." Lib. i, cap. i.
go POLITICAL SCIENCE QUARTERLY. [VOL. XI.

rule he means rule in accordance with that natural law which

embodies the dictates of justice. The sway of reason, rather
than appetite, he regards as indispensable to distinguishbe-
tween a state and a pirate band. In treatingin detail of social
relations,he brings to bear against the theoriesof communism
not only the Aristotelian arguments,but also the recent prac-
tical results of Anabaptist extravagancesin Germany. Family
relationships are closely analyzed, with a leaning towards a
conceptionof maritalauthoritythat has more kinshipwith the
rightsof thepaterfamilias in Roman law than with the " con-
stitutionalgovernment"of the Aristotelianhusband. Finally,
Bodin creates a distinct place for himself in the historyof
social evolutionby an elaborate assault on the moral and philo-
sophical foundationsof the institutionof slavery.'
As between Hobbes and Boclin, it would not have been
strange if the latter,rather than the former,had conceived of
the state as having its origin in a deliberate act of volitionon
the part of a numberof individuals. The contract theoryof
the state was so direct an outgrowthof the revival of Roman
law in Europe that a jurist of the sixteenthcenturymightvery
naturally have adopted it. But in Bodin's day the contract
idea was the weapon almost exclusivelyof the factions whom
he was opposing; and this fact,combinedwith the historical
bent of his temperament,turned him to the Aristoteliancon-
ception of the state as a phenomenondevelopingmore or less
unconsciously out of the inherent qualities of man and his
environment.2 By the time Hobbes wrote,the contracttheory
had become so ingrained in all political philosophy that to
avoid it was as impossible as it is to-dayto avoid the influence
of the theoryof evolution. The Englishman, therefore,took
it up, but so modifiedit as to render it serviceable to absolut-
ism as well as to what he consideredanarchy.
It is in the sixth chapter of the firstbook of the Republic,
1
Lib. i, cap. v.
Strictlyspeaking,it is society,ratherthan the state,that Bodin conceivesas
2

thus originating. The distinctionbetween the two is vaguely present in his

mind. The objective factin the formationof historicalgovernmentshe holds to
be vis major. Op. cit.,I, vi.
No. I.] JEAN BODIN ON SOVEREIGNTY 9I

whereBodin takes up the consideration of citizenship,that

the characterand importanceof his theoryof sovereignty
beginto appear. The confusedand contradictory criteriaof
citizenshipin Aristotle'sPolitics are rejected,especiallythe
assertionthatparticipationin politicalrights(e'zCcX lad 7 ica
&Kada-T-7S) is a prime characteristicof the citizen. A citizen,
says Bodin, is "a free man who is subjectto the sovereign
powerof another." <" Free " excludesslaves,butnotwomen
or thoseunderpaternalauthority.Exceptingthe servileclass,
then,the populationof a statefallsintotwoprimary divisions,
sovereignand citizens. In thelatterclass theremaybe, with
respectto one another,an infinite varietyof rights,privileges
and immunities of individuals;but withrespectto the sove-
reign, all stand in preciselythe same relation, namely,
subjection. It is not necessaryto followBodin'sexhaustive
examination of the law of antiquityand of later centuriesto
catchthe driftof his purpose. He is veryreadyto concede
that the peer may have different rightsand privilegesfrom
the townsman(bourgeois),the townsman fromthe rusticand
fromothertownsmen;but he feels that the aggregation of
social classes whichfeudalismhas developedcan onlyattain
the unityand orderof the true state life througha power
dominating and regulatingall alike. Subjection to such a
sovereignpoweris the sole testof citizenship, and the recog-
nitionofa commonsovereignis the sole criterionof a state
(respublica).
Like manyof his predecessorsin politicalphilosophy since
Aristotlebecame the chief authorityin Europe, Bodin is
troubledto adapt to the great feudalmonarchies of the six-
teenthcenturythe principleswhichthe Greek derivedfrom
the homogeneouscity-state. He is writingin the time of
transitionfromthe feudalto the nationalstate. He is con-
scious of the importanceof commoncustomsand laws in
determining politicalrelations,but as a loyal subject of the
Frenchmonarch, he cannotat all concedethatsuchcommunity
is a basis forpoliticalindependence. He distinguishes, there-
I Liberhomoqui summaealterius obligatur.I, vi.
potestatis
92 POLITICAL SCIENCE QUARTERL Y. [VOL. XI.

fore,between the state (civitas) and the commonwealth(res-

publica) muchas it is customaryat the presentday to distinguish
nation fromempire. The respublicaconsists ofcitizenssubject
to the same sovereignpower,
tametsimoribus,legibus, institutisac infinitagentiumvarietate
interse differant.Si verocives omnnesiisdem legibus utantur,non
solumeademrespublica,sed etiamcivitas eadem est; tametsicives
huc illuc per vicos, urbes et municipiadispersia se ipsis sedibus
sejungantur.. . . Civitas pluriumvicorumac urbiumcives iisdem
legibusac moribuscomplexamoderatur.1
Throughoutthe chapter it is possible to discern in Bodin's
thoughtthe influenceof Greek, Roman and medieval concep-
tions. The Hellenic 7rodxtv and the Roman urbsand mnunicipium
included villages (vici); the feudal state, afterthe rise of the
towns, included many urbes; and Bodin's rcspub/icaincludes
all these earlier forms.

III.

In the eighth chapterof Book I, Bodin takes up the formal

discussion of sovereignty.2 The idea is embodied,as we have
already seen, in his definitionof state. He definesthe concep-
tion thus: Sovereignty is supreme power over citizens and
subjects, unrestrainedby the laws." 3 Consideringthat such
a definitionis absolutely essential to the idea of the state,
Bodin assumes an air of pardonable pride in declaring that
neitherphilosophernor jurist has ever beforepropoundedone.
In the development of his definition,it is laid down that
authoritywhich is trulysovereign must be not only supreme,
but perpetual-that is, without limit of time. Thus the
Roman dictator,with all his power, fell short of sovereignty
through the limitation of his term. Similarly any official
entrusted with supreme authorityfor the accomplishmentof
some specific purpose is less than sovereign. The Decenzviri
De Republica,I, vi.
1
For a good account of the earlier historyof this conception,see Gierke,
2

JohannesAlthusius,pp. 123 et seq.

3 Majestas est summa in cives ac subditoslegibusquesoluta potestas.
No. I.] JEAN BODIN ON SOVEREIGNTY 93

of the sover-
Zegzunferendarumwere but the commissioners
eignpopulusRomanus. Regents,viceroysand suchdignitaries
fallintoa like category. Yet Bodin takes care not to carry
the idea of " perpetual" too far. He is not readyto exclude
the conceptionof monarchfromthe scientifictreatmentof
politics. "But if,"he says,"we construeperpetualpoweras
that whichwill neverhave an end, sovereignty will have no
existencesave in the popularand thearistocraticstate; since
the people [only] is immortal,unless,indeed,it be utterly
exterminated."The lifetenureof supremepower,therefore,
constitutessovereignty in an individual. Sovereignty in this
sense may be bestowedby a people on an individual,or be
transferred fromone individualto another,and in eithercase
it is equallyvalid,so longas it is freefromcondition.
Justat thispointthereis obviousone ofthegaps in Bodin's
theory. He is at some pains to establishthe alienability of
sovereignty- that long and hotlycontestedpoint; but he
omits to account philosophically for the possessionof that
which he holds may be transferred.He is verynear to a
realizationand a solutionof the problemwhen he reflects on
the immortality of "the people,"as comparedwithany indi-
vidual. He mighthave distinguishedbetweenthe eternal
principleof orderand authority whichis impliedin the very
conceptionof an immortalpeople, and the power to issue
and enforcespecificcommandswhich is but an outcomeof
that principle. But here, as in so manyother partsof his
work,Bodinis preoccupiedwithhis purposeof justifying abso-
lutemonarchy;and he misses the chance to pass fromlegal
to thebroadergroundsof politicalsovereignty.
The supremacyimpliedin majestasis set forthby Bodin
withan abundanceof analysisand illustration.The essence
ofthe idea is embodiedin thewords" legibusso/uta." Sover-
eigntyhas its chiefand characteristic functionin the making
of laws.' Fromthebindingforceof theselaws,the sovereign
is by the natureof the case free. But notfromall laws. " If
1 Summumjus majestatisin eo potissimumversani,cumnon modo singulissed
etiamuniversisleges danturiisque imperatur.
94 POLITICAL SCIENCE QUARTERLY. [VOL. XI.

we should define sovereigntyas a power legibus omnibussolu-

tam, no prince could be found to have sovereign rights; for
all are bound by divine law, by the law of nature and by that
commonlaw of nations which has its source in these." This
distinctionis consistentlyobserved by Bodin. His legislator
is the legislatorof the jurist, not of the theologian or of the
moral philosopher. He assumes, but nowhere closely defines,
the leges divinae, naturae etgentium. Those are conceptions
beyond his precise sphere, always controlling,indeed, but from
a higherplane, the phenomena with which he wishes specifi-
cally to deal. The sovereign,like the subject, is bound by the
law of God and of nature,but his obligation in this respect is
to God, by whom it will be enforced.
As to the civil law - the law of the land - the sovereign's
will is the ultimate source of its everyprecept,and the will is
free. No statute,whetherenacted by himselfor by his prede-
cessor, survives a duly signifiedchange of will on the part of
the holder of sovereign power. Bodin is quite explicit in
laying down this fundamental principle, but his subsequent
discussion introducessome importantmodifications. The law
of God and of nature comes in to determinethe answer to
several questions. If a prince (sovereign)has sworn to observe
the laws of his fathers,is he bound thereto? Not, says Bodin,
if he has sworn merely with himself; but the obligation is
good if anotherprince (sovereign) has a recognized interestin
it, or if it is undertaken toward the subjects as a conditionof
reigning. Here, however, the force of the obligation arises
not fromthe oath but fromthe bona fide contract,which, in
the case of a sovereign,must be sharplydistinguishedfrom a
law. The prince, like the private citizen, is subject to the
principlesof naturallaw, amongwhich the keepingof contracts
occupies a high place. Yet when the reason fora pledge has
ceased, the obligation on the part of the prince ipso facto
ceases. Though Bodin does not point it out, the sovereign,
1 Bodin employsthe wordprincepsfor " sovereign"; and this usage contrib-
utes greatlyto aggravate the confusionbetween sovereign and monarch which
has its primarysource in the writer'spreferenceformonarchy.
No. I.J JEAN BODIN ON SOVEREIGNTY. 95

underthis theory,has a most important advantageover the

subjectsin the factthathis decisionas to whenthe reasonfor
a givenpledgehas ceased is verylikelyto be final. That the
authoris in somewayconsciousof difficulty in the practical
workingof his principleappears,however,in his declaration
that"well-informed princesdo notallowthemselvesto come
underthe obligationof an oath wheremattersof legislation
are concerned,lest theyshouldnot enjoythe supremepower
in the state."
In additionto the keepingofpromises,the otherprinciples
of the law of natureoperateto hedge about the sovereign.
Especiallyearnestand explicitis Bodin in the matterof pri-
vate property. The omnipotenceof a prince is only imperum,
not domninatus.
The authorcites approvingly the maximof
Seneca: Ad regespotestas omniumpertinet, ad singulos pro-
pietas. "Without just cause the sovereign cannot seize or
grantawaythe property of another." And he citeswitha true
lawyer'sdelightinstancesin whichthe Frenchkingshave sub-
mittedto the judgmentsof their own courts in questions
touwChing privateproperty.
witha viewto guardingagainstanypossibility
It is obviously
of warpinghis theoryto the supportof oppressivegovernment
thatBodindwellswithsuch iterationon the restraints thatthe
sovereignmust findin the divineand naturallaw. An elabo-
ratedistinctionbetweenthe kingand the tyrantis workedout
on thisbasis.' The kingis he whorendersto thelaws of God
and of naturethe same obediencewhichhis subjectsrenderto
him. The tyrantspurnsthese laws and abuses at his caprice
the libertiesand propertyof his subjects. But the tyrantis
no less a sovereignthan the king. Sovereignty is a political
onlyin the possessionand exerciseof supreme
fact,consistin?g
power; the distinctionbetweentrueroyaltyand tyranny rests

1 Lib. ii, cap. i-iv, passim. Bodin actually makes a threefoldclassification

of monarchies,the characteristic of one class, theDominatus,beingthe enjoyment
of propertyrights(dominium)bythesovereignover the personsand possessions of
his subjects. The same principleofclassification is appliedrigorously
to aristocracy
and democracyalso.
96 POLITICAL SCIENCE QUARTERLY. [VOL. XI.

on a moral principle,and is determined by the mode of exer-

cising this power.
In addition,however,to the restraintsof divine and natural
law, there are evidences in Bodin's thoughtof other limitations
upon the sovereignwhich cannot so easily be put in the cate-
gory of moral as distinct from legal limitations. There are
laws in the state which the sovereign cannot touch. His
allusions to these superior rules are far from clear, but they
seem to indicate a somewhatvague notion in the writer'smind
of what we call a constitution. Thus, in discussing the extent
of the sovereign prince's authorityin respect to the laws, he
says:

But so faras concernsthe lawsof empire(legesimperii),sincethey

are connectedwith sovereignty itself,princescan neitherabrogate
nor derogatethem. Of this class is the Salic Law, the firmest
foundationof this kingdom.

In not explaining fullythe conception involvedin the term

leges imperii, Bodin is again guilty of a serious lapse. His
anxietyto have somethingin a state more fixedand permanent
than the human will leads him to limit the power legibus
soluta,by leges as well as byjus. But who is the law-makerin
the case of these leges imperii? Bodin might have answered,
consistentlywith his general theoryof the historical origin of
the state: Nature. But this conception of nature would have
been quite distinct from that which lay at the bottom of his
leges naturae,and would have led to multipliedconfusion. Or
he might have found the source of these laws in that people,
in whose collective life he sees the only possibilityof a per-
petual sovereignty.' But fromlines of reasoning that lead in
the direction of popular authority,Bodin's aversion is very
pronounced; a populus in his view is too nearly identical with
a disorderlymob. So his opportunityto elaborate the great
distinction between the constitution-making sovereign and the
ordinary law-makingsuperiorwas lost. With his exact defi-
nition of the latter,however,he advanced the theoryof sover-
1 Supra, p 93.
No. i.] JEAN BODIN ON SOVEREIGNTY. 97
eigntyto a point beyond which a great manywritershave not
passed even at the presentday.
The failure of Bodin to dilate upon the distinctionjust
noticed is the more surprising in view of the very elaborate
discussion of the meaningof lex in his treatmentof the char-
acteristicrights(jutra)of sovereignty.' The firstof these rights
is legemnnuiiversisac singulis civibutsdare. Lex is sharply
distinguishedfromcdicturm or decreturn. The sovereignmakes
law ; the magistratesissue decrees. So the relationof custom
(consucttudo)to law is effectivelyset forth. It is not true,he
holds, that custom and law are of like characterand force,and
that the people, as the source of the one, is on a level with the
prince, the source of the other. Law can abolish custom;
not so the converse :2 custom has no sanction,while sanction
is characteristicof law ; the forceof custom is precarious till
the sovereign establishes a sanction,whereuponthe custom at
once becomes law. Hence, he concludes,both law and custom
depend on the will of those who hold the sovereign power in
the state. Again, the distinctionbetween lex andjus is noted.
Jus relates to what is just and good, without regrardto any
command; lex relates to the sovereigntyof one issuing a
command.3 In short, law, he says, is nothing,else than a
commandof the sovereign. Afterthis, the conceptionof leges
irperii, above the sovereign will, seems very much out of
place in Bodin's system.
More in keepingwithhis usuallyvigorouslogic is his analysis
of the formsof state.4 Here his keen analysis leads him to
the presentationof a distinction of the utmost importance
to scientificpolitics. Adopting, with characteristiccriticism
and amendment, the old Aristotelian classificationof mon-
archy, aristocracy and democracy, he points out that the
1 Lib. i, cap. x.
2 This apparentlydoubtfulpropositionhe fortifiesby declaringit the dutyof
the magistratesto recall into operationlaws whose force has been weakenedby
custom.
3 Plurimumdistatlex a jure: jus enimsine jussu, ad id quod aequum bonum
est; lex autem ad imperantismajestatempertinet. Lib. i, cap. viii.
4 Lib. ii, cap. i.
98 POLITICAL SCIENCE QUARTERL E [VOL. XI.

essential character of the state is quite differentfrom the

principle of government.' The state may be monarchic and
the governmentaristocratic or democratic; or an aristocratic
state may be popular in government. Whatever may be
the minor defects in Bodin's conception of sovereignty,it
is clear enough to lead him to this capital distinction be-
tween state and government. The form of the state is
determinedsolely by the number of those in whom the sov-
ereigntyis vested ; the form of governmentis determinedby
the manner in which the administrationof the sovereign's
will is distributedamong the subjects. There are but three
possible formsof state, according as the sovereigntyis in one,
in more than one but less than all, or in all. Writers who
have talked of mixed forms of state have been led astray by
their failure to distinguish state from government. Not in
sovereign power, but in administrationcan there be such a
joint participation of different elements as to justify the
designation "mixed." A monarchicstate has an aristocratic
governmentwhen the sovereign monarch confers honors and
officesupon certain classes only ; it has a democratic govern-
ment when honor and officeare bestowed on all classes alike.
The early Roman republic was a democratic state with an
aristocratic government. The Athens of Pericles was demo-
cratic in both state and government.
In applying his doctrineto the facts of contemporarystate
systems,Bodin strikesa vicious blow at that venerable sham,
the Holy Roman Empire. Tested by his conception of sov-
ereignty,this august body politic is foundto be, not the most
exalted of monarchies- indeed, not a monarchyat all, but so
far as it is a simple state, a mere aristocracy.2 Sovereigntyis
in the diet, not in the emperor. In respect to the complete
sovereigntyof each of the members of the empire,however,
Bodin thinks that it is really more like a confederacythan a
simple state. So far as I am aware, this is the earliest literary
1 Illud admonendi sumus, reipublicae statum ab imperandi ratione distare

plurimum,quod ante nemo quantum intelligerepotuimus animadvertit.- Lib. ii,

cap. ii, ad init.,etpassim. 2 Lib. ii, cap. vi.
No. i.] JEAN BODIN ON SOVEREIGNTY. 99

expositionof the transformation of the empire,which became

very clear to everybodyafter the Thirty Years' War.' Eng-
land gives Bodin some trouble in classification. If Parliament
really possesses all the importancethat is claimed for it by the
historians,he recognizesthe impossibilityof describingEngland
as a true monarchy. But his investigationof incidents in the
Tudor reigns convinces him that ultimateauthorityis reallyin
the king, and that accordingly the state is monarchic. A
similar conclusion is reached as to Spain; and France he
treats throughoutas a model monarchyof the royal type.

IV.
When we turn from Bodin to Hobbes, we find that the
latter,unlike the former,2leaves no uncertaintyin respect to
the origin of sovereignty. A deliberateact of volitionby each
memberof a communitytransfersall his rightsand powers to
some person or assembly of persons. In this transferis to be
found the originof the body politic,as distinct from a mere
inorganicmass of individuals. In the aggregate of rightsand
powers transferredis the essence of sovereignty. Right and
might are in Hobbes fundamentally identical; therefore,
supremacyof the sovereignover the individualspringsimmedi-
atelyfromsuperiorityof power. But Hobbes is not contentto
start fromthe mere fact of individualconsent as the condition
of political organization. The cause forthis consent is sought,
and is found in the instinct of self-preservation. Without
following the philosopher into his ingenious theory of the
"state of nature" and the "war of all against all," his conclu-
sion is that for self-preservationmen's reason teaches the
necessity of certain rules, conformityto which is indispensable
to social existence. These rules require,among other things,
the abandonmentby the individualof his natural rights,which

1 From as far back as the time of Philip the Fair the lawyersof the rising
French monarchyhad scoffedat the pretensionsof the emperors; and legal
tradition probably aided Bodin in his criticism. Cf. Poole, Illustrations of
MediaevalThought. 2 Ante,p. 93.
IOO POLITICAL SCIENCE QUARTERLY. [VOL. XI.

are identicalwith his natural powers, the keeping of covenants

(in which alone, according to Hobbes, consists justice), the
exercise of gratitude, forgiveness,equity, etc.' But having
deduced these laws of nature,and formulatedthem so as to
make them the log-icalbasis of the state, Hobbes takes precau-
tions at once to avoid the ambiguities and confusionsfound in
Bodin at this point.
The greatest improvementmade by Hobbes upon his prede-
cessor is undoubtedlyto be found in the Englishman's analysis
of the termlaw. The so-called laws of nature which he has
worked out, are not, he says, really laws, but merely"conclu-
sions or theoremsconcerningwhat conduceth to the conserva-
tion and defense" of men. "Law, properly,is the word of
him that by righthath commandover others."2 The ultimate
human right to command is vested in the sovereign by the
contract through which the state is instituted. Civil laws,
then, consist in expressionsor other manifestationsof the will
of the sovereign,who himselfis not bound thereby.3 Divine
law is that which emanates from the will of God. Ultimately
the law of nature may be regarded as divine law, though it is
present to men not directlyas a command, but as a body of
principlesfound out by the reason. A directly revealed com-
mand of God addressed to a particularperson or people is law
proper,and is designated as " divine positive law."
Discriminating thus between the differentkinds of law,
Hobbes uniderstandsand boldly grapples with the difficulties
bound up in the question of interpretation. He will not leave
open here a refuge for the enemies of order. All laws, he
says, need interpretation,particularly the unwritten law of
nature.4 But this latter becomes law properonly when it is
embodied in commands of the sovereign; and for the citizen
the bindinginterpretationin this case, as in case of civil laws
pure and simple, is that of the sovereign, through his duly
constituted judges. Hobbes has no patience with those who
1 Leviathan,chaptersxiii-xv.
2 Ibid., (Morley'sedition),pp. 78, 79.
3 Ibid., p. 123 et seq. 4 Ibid., p. i 28.
No. i.] JEAN BODIN ON SOVEREIGNTVTY. 101

look to the moral philosophersfor authorityas to the law of

nature,or to the commentatorsas to the civil laws.
The interpretation of the laws of nature in a commonwealth
dependethnoton thebooks of moralphilosophy. The authority of
writerswithoutthe authority of the commonwealth makethnot their
opinionslaw,be theyneverso true. That whichI have writtenin
this treatiseconcerningthemoralvirtues,. . . thoughit be evident
truth,is not, therefore,presentlylaw. . . . For though it be
naturallyreasonable,yetit is by thesovereignpowerthatit is law.'
And again:
When questionis of the meaningof written laws,he is not the
interpreter
of them that writetha commentary upon them. For
commentariesare commonly moresubjectto cavil thanthe cext,and
thereforeneed othercommentaries;and so therewill be no end of
such interpretations.2
Thus the footing which the factions have found in various
interpretationsof the moral and the civil law is swept away,
and the sovereign stands triumphant. But there remains one
other hope for the adversaries of absolutism. What if they
could oppose to the sovereign a directly revealed commandof
God? Such a command,Hobbes readilyadmits, must super-
sede all human authority. But could the knowledgeof such a
commandbe independentof human judgment? If all men, in
the presence of one another,received an identicalmanifestation
of God's will, that would be conclusive. But when some one
man or body of men comes forwardclaiming to have received
privately a revelationfromGod, how shall other men be satis-
fiedof its authenticity? Hobbes can findno adequate answer
to this question, and his solution of the whole problem is
reached on the same lines that have been followed in connec-
tion with the law of nature and the civil law.
In all thingsnot contraryto the moral law,that is to say,to the
law of nature,all subjects are bound to obey that for divine law
whichis declaredto be so by the laws of the commonwealth.
And the reason of this is simple.
1 Leviathan,p. 128. 2 Ibid., p. 129.
102 POLITICAL SCIENCE QUARTERLY. [VOL. XI.

If menwereat libertyto takeforGod's commandments theirown

dreamsand fancies,or the dreamsand fanciesof privatemen,scarce
two menwould agree upon what is God's commandment; and yet
in respectof them,everyman woulddespise the commandments of
the commonwealth.'
With logic like this there is no possibilityof such confusion
as we have seen in Bodin over the relationof the sovereign to
the Zeges divinae, naturae et gentium.2 Hobbes does indeed
declare in various passages that the sovereignis bound by the
law of nature; but his precise analysis of the source and
characterof this law leaves no room for the delusion that the
sovereign's obligation is at all of the same type as that of the
subject. The latter is bound under the terms of the original
contract; but this contractis most carefullyframedby Hobbes
so as to exclude the sovereign fromany share in it.3 Thus,
while the keeping of contractsis a precept of the law of nature
that affects the subjects, it has no application,so far as they
are concerned,to the sovereign. Again, Hobbes scoffsat the
classificationof formsof state according to the relationof the
sovereign to the laws of nature.4 Three forms, and three
only, are logical. The others are merely the expressions of
individual feeling.
They thatare discontentedunder monarchycall it tyranny;and
theythatare displeased with aristocracycall it oligarchy;so also
they which find themselvesgrieved under a democracycall it
anarchy,whichsignifieswantof government.And yet I thinkno
man believes that wantof government is any new kindof govern-
ment; norby thesame reasonoughttheyto believethatthegovern-
mentis of one kindwhentheylike it, and anotherwhentheydislike
it,or are oppressedby thegoverners.5
There is obviously no room in Hobbes's thought for any
conception like Bodin's leges irnperii.6 Nor has the English-
man any such respect for private propertyas is displayed by
1 Leviathan,p. 133.
2 "sThe law of nationsand the law of natureis the same thing." Leviathan,
p. i6i. 5 Leviathan,p. go.
3 Leviathan,p. 85. 6 Ante,p. 96.
4 Ante,p. 95-
No. i.] JEAN BODIN ON SOVEREIGNVTY. 103

the French writer. To sovereigntypertains " the whole power

of prescribing the rules whereby every man may know what
goods he may enjoy . . . without being molested by any of his
fellowsubjects; and this is it men call ' propriety."'I It is a
doctrine that tends to the dissolution of a commonwealth,
"that every private man has an absolute propriety in his
goods, such as excludeth the sovereign." What propertya
man holds, he has only from the sovereign.2 On the other
hand Hobbes agrees substantiallywith Bodin in respect to the
relationof custom to law,3and in the distinctionbetween the
sovereignand the administrativesystem,or government.

V.
From the standpointof pure speculation,it is impossible to
deny that Hobbes's doctrineis more complete and perfectthan
that of Bodin. Where the latter, with the caution of the
philosophicstatesman,hesitated,the former,with the indiffer-
ence of the exact mathematician,followed the path of his
reasoning to the end. The student of historyand law is not
apt to be as confidentas the devotee of the physical sciences,
in regard to the availability of abstract formulasfor solving
political problems. The hostilityaroused by the ethical4 and
1 Leviathan,p. 87.
2 " Where there is no commonwealththereis . . . a perpetual war of every
man against his neighbor; and thereforeeverythingis his that gettethit and
keepethit by force; whichis neitherproprietynor community, but uncertainty."
Leviathan,p. I I6.
3 While Bodin, as stated above, looks upon custom as lacking the character
of law until the sovereign signifiespositivelyhis will in respect to it, Hobbes
regards the silence of the sovereign as expressinghis will. "When long use
obtaineththe authorityof a law, it is not the length of time that maketh the
authority,but the will of the sovereign signifiedby his silence." Leviathan,
p. 124.
4 It must be pointedout, however,that in one importantinstancecriticism of
Hobbes is generallyunfair. He is censuredgreatlyforholdingthat no law,i.e.,ex-
pressionof the will of the sovereign,can be unjust. He does, no doubt,say pre-
ciselythat. But he has so definedjustice as to include underthe termonlypartof
theidea usuallyconnotedthereby. Justice,he says,is onlythekeepingofpromises;
and the originalcontractinvolveda promiseof submissionto thesovereign. Dis-
obedience,therefore, is unjust. But this sense of justice involves onlywhat is
I04 I POLITICAL SCIENCE QUARTERL Y

religious doctrines of Hobbes obscured fora centurythe value

of much that he wrote. Bodin, on the other hand, had great
vogue for a time, though his rational and juristic absolutism
was ill adapted to the appetite of the age which feasted on
the emotional and divine-rightdoctrine of Bossuet. It was
Montesquieu's great work that broughtFrench thought back
into the methods of Bodin, while Rousseau introduced the
method of Hobbes. But the divergence of the later pair of
writerswas much greater than that of the earlier. The whole
effectof Montesquieu's work was to emphasize those elements
in social and political life which are most independent of
human volition,and hence to minimize the significance,if not
to exclude the conception,of absolute sovereignty. Rousseau,
on the contrary,intensified,if possible, the absoluteness of the
sovereignhuman will as conceirvedby Hobbes, and made it the
sole basis of his democracy. W A. DUNNING.

knownas commutativejustice. Distributivejustice is definedby Hobbes under

anothername,equity. And the whole criticismfalls when Hobbes admits that
the sovereign,whilehe cannot commitinjustice,can commitiniquity. Leviathan,
p. 86.