This deserves notice because the position is characteristic of the Utilitarians'method.Their appeals to experience always end by absolute assertions,We shall find the same difficulty in their economic inquiries,When accused,for example,of laying down absolute principles in such cases,they reply that they are only speaking of 'tendencies,'and recognise the existence of 'checks,'they treat of what would be,if certain forces acted without limit,as a necessary step towards discovering what is when the limits exist.They appear to their opponents to forget the limits in their practical conclusions.This political argument is an instance of the same method.The genesis of his theory is plain.Mill's 'government,'like Bentham's,is simply the conception of legal 'sovereignty'transferred to the sphere of politics.Mill's exposition is only distinguished from his master's by the clearness with which he brings out the underlying assumptions.The legal sovereign is omnipotent,for what he declares to be the law is therefore the law.The law is his commands enforced by 'sanctions,'and therefore by organised force,the motives for obedience are the fear of the gallows on one side,and,on the other,the desire of protection for life and property.Law,again,is the ultimate social bond,and can be made at will by the sovereign.
He thus becomes so omnipotent that it is virtually assumed that he can even create himself.Not only can the sovereign,once constituted,give commands enforced by coercive sanctions upon any kind of conduct,but he can determine his own constitution.He can at once,for example,create a representative system in practice,when it has been discovered in theory,and can by judicious regulations so distribute 'self-interest'as to produce philanthropy and public spirit.Macaulay's answer really makes a different assumption.He accepts the purely 'empirical'or 'rule of thumb'position,it is idle,he says,to ask what would happen if there were no 'checks,'it is like leaving out the effect of friction in a problem of mechanics,the logic may be correct,but the conclusions are false in practice.36Now this 'friction'was precisely the favourite expedient of the Utilitarians in political economy.To reason about facts,they say,you must analyse,and therefore provisionally disregard the 'checks,'which must be afterwards introduced in practical applications.Macaulay is really bidding us take 'experience'in the lump,and refrains from the only treatment which can lead to a scientific result.His argument,in fact,agrees with that of his famous essay on Bacon,where we learn that philosophy applied to moral questions is all nonsense,and that science is simply crude common-sense.
He is really saying that all political reasoning is impossible,and that we must trust to unreasoned observation.Macaulay,indeed,has good grounds of criticism.He shows very forcibly the absurdity of transferring the legal to the political sovereignty.Parliament might,as he says,make a law that every gentleman with £2000a year might flog a pauper with a cat-of-nine-tails whenever he pleased.But,as the first exercise of such a power would be the 'last day of the English aristocracy,'their power is strictly limited in fact.37That gives very clearly the difference between legal and political sovereignty.What parliament makes law is law,but is not therefore enforceable.We have to go behind the commands and sanctions before we understand what is the actual power of government.It is very far from omnipotent.Macaulay,seeing this,proceeds to throw aside Mill's argument against the possibility of a permanent division of power.The de facto limitation of the sovereign's power justifies the old theory about 'mixed forms of government.''Mixed governments'are not impossible,for they are real.All governments are,in fact,'mixed.'Louis XIV could not cut off the head of any one whom he happened to dislike.
An oriental despot is strictly bound by the religious prejudices of his subjects.If 'sovereignty'means such power it is a chimera in practice,or only realised approximately when,as in the case of negro slavery,a class is actually ruled by force in the hands of a really external power.
And yet the attack upon 'mixed governments,'which Bentham had expounded in the Fragment,has a real force which Macaulay seems to overlook.Mill's argument against a possible 'balance'of power was,as Macaulay asserted,equally applicable to the case of independent sovereigns;yet France might be stronger at Calais and England at Dover.38Mill might have replied that a state is a state precisely because,and in so far as,there is an agreement to recognise a common authority or sovereign.Government does not imply a 'mixture,'but a fusion of power.There is a unity,though not the abstract unity of the Utilitarian sovereign.The weakness of the Utilitarians is to speak as though the sovereign,being external to each individual,could therefore be regarded as external to the whole society.
He rules as a strong nation may rule a weak dependency.When the sovereign becomes also the society,the power is regarded as equally absolute,though now applied to the desirable end of maximising happiness.The whole argument ignores the ****** consideration that the sovereign is himself in all cases the product of the society over which he rules,and his whole action,even in the most despotic governments,determined throughout by organic instincts,explaining and not ultimately explicable by coercion.Macaulay's doctrine partially recognises this by falling back upon the Whig theory of checks and balances,and the mixture of three mysterious entities,monarchy,aristocracy,and democracy.But,as Bentham had sufficiently shown in the Fragment,the theory becomes hopelessly unreal when we try to translate it into facts.