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396 BASIS OF SOVEREIGNTY.
tion of rules of action which are called its municipal or national law.
The question of the seat or investiture of sovereign power can therefore be a historical question only, or a question of fact, as that of its nature and extent is ethical. These are essentially political,1 and not legal questions. Or, although they may be called topics of public law, it is of law in a sense antecedent to legislation or jurisdiction, which is the manifestation of a sovereignty, of law in the secondary sense—the statement of a mode of action.
§ 333. But although the possession of sovereign power is not determined by the law, it is the first necessity of judicial action, in recognizing any precepts as law, to acknowledge their source as being the sovereign or "supreme power of the state ;" since the law in asserting its authority claims its origin in that power. In this view the political principle of the seat of sovereignty becomes also the fundamental doctrine of municipal (national) law.
The possession of sovereignty being a fact, and not an effect of law, whatever written memorials or declarations of the rightfulness of any national sovereignty may exist, they can only proceed from itself, and they can only be taken as historical evidences of its existence; not as law controlling that possession of sovereign power which they assert. And the authors of those declarations must always be supposed to have the right to substitute others of different tenor and equal juridical authority. There can therefore be no written constitution of government so authoritative in its nature or expression as to determine the rightful sovereignty—the rightful holders of that rightful supreme power; since before that constitution has effect as law it must be recognized to be the act of sovereign power— power above all law in the ordinary sense."
§ 334. While therefore those written instruments which are FORCE OF CONSTITUTIONS. 397 known as the Constitutions of the several States and of the United States, and legislative or juridical power derived from them are juristically assumed to be the foundation of all legal rights and obligations existing within the domain occupied or held by those States, that assumption involves a previous political recognition of some existing sovereignty or possession of supreme power within that dominion, and the conception of the absoluteness, necessity, and temporal and territorial extent of the positive law contained in those Constitutions, or derived from them, will depend upon the political theory of the investiture of that sovereign power from which they proceed. At the same
1 Luther v. Borden, 7 Howard U. S. Rep. pp. 39, 51-58.
* Re Maistre, on the Generative Principle of Political Constitutions, Transl., Boston, 1847; 18mo, p. 41. "The more we examine the influence of human agency in the formation of political constitutions, the greater will be our conviction that it enters there only in a manner infinitely subordinate, or as a simple instrument; and I do not believe there remains the least doubt of the incontestable truth of the following propositions:
"1. That the fundamental principles of political constitution exist before all written law.
"2. That constitutional law is, and can only be, the development or sanction of an unwritten pre-existing right.
"8. That which is most essential, most intrinsically constitutional and truly fundamental is never written, and could not be without endangering the state.
"4. That the weakness and fragility of a constitution are actually in direct proportion to the multiplicity of written constitutional articles."
See also the preface to the same essay, p. 11.
The ideas of De Maistre are correct when the question is—what determines the existence of sovereignty, or the investiture of sovereign power? No written constitution can exist a priori, or have an a priori authority. There must have been an existing sovereignty to originate such constitution. The fallacy in his writings lies in confounding law, in the primary sense, with a mode of action; and law, in the ordinary sense or legislation, with political ethics. A similar fallacy is common with authors of the extreme opposite school. De Maistre says: Because it is impossible to establish a supreme government without acknowledging the existence of an anterior sovereign, therefore all actual sovereignties are the creation of the Deity, and arise independently of man's agency : which may be admitted. But he then asserts that sovereignty can never be in the nation or people; because, he asserts, the Deity has never actually sanctioned popular sovereignty, but, always, monarchical sovereignty; professing to learn this from history: that is, he asserts this as a law in the secondary sense. But here he assumes that he, or some one, can determine the will of the Deity and interpret facts by it: for he asserts that no actual possession of power by the people has ever been a legitimate possession. But he who could interpret facts by an assumed law of the Deity would be the only earthly sovereign. De Maistre describes the legitimacy of monarchy as power above law, and "legitimate usurpation," that is, the continued fact proves its own lawfulness. But the same criterion has legitimated popular sovereignty in America; unless his own standard of duration also is to be re•ceived. "On nous cite l'Amerique; je ne connais rien de si impatientant que les louanges decernes a cet enfant au maillot; laisser le grandir." By his argument there can be no legitimate sovereignty in the United States, nor, by consequence, any law: unless the act of George III. in the treaty of peace, 1783, may be, on his principles, alegitimate grant of power.
In the same manner Tucker, Paine and others would prove that no sovereign power can be held except by a compact of the individual members of society; and that all juridical power previously exercised throughout the world, antecedent to the American Revolution, was illegitimate; or that no law existed before that time. But, in fact, their argument would equally prove that no law, even now, exists in the United States.
398 REFERENCE TO HISTORY.
time the existence of that sovereignty is part of the customary or unwritten jurisprudence of the land, whatever may have been its comparative duration; that jurisprudence being entirely historical, as opposed to analytical; or, nothing else than the mere history of the acquisition and continued possession of sovereign power.
§ 335. The events which may be regarded as the continuous act by which these Constitutions were produced, and the words and expressions which made part of those acts and of their record, must determine the existence of that sovereignty which has given these Constitutions their force. But since the political significance of all events, not resulting from positive law, must always be liable to variety of appreciation, in view of different doctrines of political expediency, different political theories may be derived from those events, leading to different juristical views of the legal force and extent of the provisions of these Constitutions. For this reason every historical narrative of these events must be liable to exception in view of some one of those theories, or, to change the form of expression, the narration will be also the exposition of some of those theories.
§ 336. The nature of civil government and of positive law is such that in every state there must be some persons who actually hold, use or enjoy the power or right of the state or of civil society to create coercive rules of action for individual members of the state, and some whose legal liberty of action is determined by those rules.1
'Austin's Fror. Jorisp., p. 255. "An independent political society is divisible into two portions; namely, the portion of its members which is sovereign or supreme, and the portion of its members which is merely subject. The sovereignty can hardly reside in all the members of society, for it can hardly happen that some of the members shall not be naturally incompetent to exercise sovereign powers," &c.
Papers, &c, Juridical Soc., Vol. I. Part I., London, 1855, p. 30. On the Conception of Sovereignty, &c, by A. S. Maine, LL.D. "First then, the human superior, who is to be sovereign, must be determinate. He need not be a tingle person or monarch. There can be no grosser mistake than this, though it is constantly perpetrated by jurists whose place of birth leads them to associate "sovereignty" with "despotism," and who are perpetually committing themselves to propositions which, if construed rigorously, would either deny the existence of governments like our own and that of the United States, or at all events brand them with the stigma of illegitimacy. Nor again can "sovereignty" be said to reside in the entire community—an error the exact opposite of the misapprehension just alluded to, and one to which French writers on public law seem especially liable. Their meaning may perhaps be that no body of individuals. except the entirety of the people, ought to be recognized as superior; but a dogma like this is something very different from the statement of a fact; and the truth is that no government corresponding with the description exists in the world. All known polities are either monarchiu or otigarchiet, since, even in the most popular, women and minors are excluded from political functions."
THE CONSTITUTING PEOPLE. 399
Though the word people, employed in these Constitutions, may, in a certain ethical and political sense, be taken to mean the whole body of the inhabitants of certain districts, or an aggregate of natural persons constituting a portion of civil society, and each one being, in some undetermined manner, represented in exercising sovereignty,1 it is yet evident that only a portion of the adult male inhabitants have in fact exercised this supreme or sovereign power of constituting governments and laws."
§ 337. There had always been a distinguishable portion of the individual inhabitants of the several colonies, who, as freemen or electors—persons possessing an elective franchise—had always had a basal or primary political existence, belonging to them as uniting the national character of British subjects of English birth or descent and the local character of corporate members of a province or a chartered colony—a political existence, underlying all forms of local government, which had formerly been manifested for local municipal and colonial objects either by direct political action or through that of elected representatives, and the same persons had always claimed a right to manifest the same for national purposes, whenever called upon to fulfil the political duties of colonial members of the British nation.
§ 338. The colonial governments had been of various constitution, being dependent, in different degrees, on the power of the crown, according to the terms of their charters, patents, or other fundamental law, and all more or less distinctly founded on the basis claimed by the colonists of being governed, in local
Compare Story's Comm. § 327, where the author flatly contradicts himself; assuming it to be a "general principle that the majority has at all times a legal right to govern the minority,"—yet saying that in fact it is always a minority which governs.
'Bouvier's Inst, of Am. Law, vol. I. p. 9. "Abstractedly, sovereignty belongs to the people and resides essentially in the body of the nation: but the nation, from whom emanate all the powers, can exercise them only by delegation."
* So populus Komanus never signified all who were called Romans, see Smith's Diet Antiq. Hoc. Plebes, Fatricii.
400 THE CONSTITUTING PEOPLE.
matters, by laws to which they had themselves, in their political capacity, not individually, but as a political integer or corporate body, and by representation, assented.
But, as has been previously stated in the third chapter, although the colonial Governments were more or less republican or popular in their form, by this recognition of a portion of the people or inhabitants as having a distinct public capacity and character, yet the political constitution of the colonies resembled that of England in this—that the attributes of sovereignty, not held and exercised by the central imperial Government, were vested rather in a local Government, or a political organization holding legislative, judicial, and executive powers, than in the whole body of, or in any distinct portion of, the inhabitants of such colony.1
§ 339. Assuming these antecedents, it may be asserted that the political change which occurred in the events of the American Revolution, did not consist in the separation of the colonial Governments from that of Great Britain, and in the enlargement of their share of sovereign power by the accretion to each of those before held, over their several territory, by the imperial Government. Nor yet, upon the revolutionary separation of the colonies from the British empire, at whatever point of time that is considered to have taken place, did the people or inhabitants of the colonial territory resolve into a mass of natural persons without civil organization, who by the aggregate of their individual authority, under some law of nature, formed themselves into new political communities.*
But in the Revolution these Governments became themselves essentially changed, so far as they had not been the instruments of the political action of that portion of the inhabitants, while the political existence of that portion continued without change; and they thereafter determined for themselves, either expressly or by implication, the fundamental or supreme public law of the territory they occupied ; that is to say, all public law subordinate
1 Ante, § 131.
* 1 Curtis' Hist, of Cons. p. 16; Calhoun's Essay, 1 Works, 190; Paley's Moral and Pol. Phi., B. VI. c. 3. There was no illustration of the "social compact'* doctrine as some have imagined; comp. 1 Tucker's BL App. p. 1-9.