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A question of less difficulty, and, for my purpose, of greater practical importance, is, where — theoretically considered, and without reference to particular states - does sovereignty reside, and what are its attributes ?
To the first branch of the question, the answer is : sovereignty resides in the society or body politic; in the corporate unit resulting from the organization of many into one, and not in Divine appointment ; secondly, upon compact; and, thirdly, upon the development of natural forces, according to natural laws.
In reference to these theories, I shall only observe, that, rightly considered, they and the numerous modifications of them, which figure in the books, seem to me to be expressions of the same truth, seen from different points of view, and naturally seen with different degrees of clearness and completeness. Thus, if the phenomena of civil society be viewed with particular reference to Divine Providence, whose interposition, whether special or general, through the operation of natural laws, is unquestionably a principal, if not the exclusive component of the forces whose resultant is the state, the ground of those phenomena might, not without apparent reason, be regarded as the Divine will. Let the attention, on the other hand, be directed chiefly to the fact, apparent in any political society during even the stormiest periods of its history, that the bulk, the majority in weight and influence, if not in numbers, of its members, acquiesce in, (see post, $ 65,) perhaps have formally assented to, the forms of its social and political organization, and it would seem proper to refer those forms to a compact between the individuals composing it. But if, beside the Divine will, and beside the apparent consent or agreement of those who constitute the bulk of a society, account be taken, as it certainly ought, of the will of men, often perverse, always unstable, and which, if a will at all, whatever theologians may say, is not determined by the Divine will, but is independent of it; the will of men, too, not comprised in that bulk of the society which seems to organize political institutions by compact, but constituting a protesting or rebellious minority, by whose hostile pressure or assault those institutions are modified, though not determined ; and if, further, account be taken of the natural or historical conditions of soil, climate, laws, degree of civilization, habits, passions, aversions, religion, and race, all of which are constantly appearing elements of the social problem in every state, whatever its rank in the scale of civilization ; it would seem reasonable to ground sovereignty and civil government upon the development of natural forces, according to natural laws. By this view, the problems of political philosophy are problems of vital dynamics; the state is an object of natural history, like a coral reef, a swarm of bees, or a family of beavers ; a composite animal, a union of many persons into one, but a vital union, not a mere aggregation by accident or choice of individuals by nature independent of each other; a union dating from the creation of the parts, and, therefore, under some form and conditions, a necessary union. The way in which such a composite being achieves what measure it does of social life and development, under the combined operation of all the social forces indicated, together with the modes of operation of these forces, are the constitution and laws of that being.
the individuals constituting such unit, nor in any number of them as such, nor even in all of them, except as organized into a body politic and acting as such. Thus, Justice Iredell, in a case in the Supreme Court of the United States, decided in 1795, after describing the formation of our governments, said: “ In such governments, the sovereignty resides in the great body of the people, but it resides in them not as so many distinct individuals, but in their political capacity only.” 1
§ 22. As to the second branch of the question, relating to the attributes of sovereignty, little need be said. The attributes of sovereignty, mentioning such only as tend to throw light upon the problems discussed in this work, are as follows:
1. A true sovereign can never voluntarily abdicate or divest itself of the sovereignty. A sovereign political society may cease longer to exist as such, - may become merged in another society, and so lose its sovereignty; but so long as it remains an independent political society, it must possess and exercise sovereign powers.
2. Sovereignty is indivisible. To establish this, we need but to try to conceive of the contrary. If the sovereignty of a state were divided among its citizens, whether a few or all of them, the recipients of it would each be possessed of equal sovereign power, and, there being no common superior, government would be impossible.
3. Sovereignty is indefeasible; that is, it is incapable, by any juggle based upon legal analogies, of being defeated or abrogated. As expressed by James Wilson, in the Convention of Pennsylvania to adopt the Federal Constitution, “sovereignty is and remains in the people."
4. Sovereignty is inalienable; that is, “ society never can delegate or pledge away sovereignty." “ Being inherent, naturally
1 Penhallow v. Doane's Admrs., 3 Dallas' R. 54. See, also, to the same point, the testimony of Judge Tucker, in Tuck. Blackst. Com., Vol. I. Appendix, p. 9, ed. 1803.
So, also, Dr. Brownson : “ The political sovereignty, under the law of nature, attaches to the people, not individually, but collectively, as civil and political society. It is vested in the political community or nation, not in an individual or family, or a class.” — The Amer. Republic, p. 135.
2 For a statement of the absurd consequences of a divisible sovereignty, see Lieber's Political Ethics, Vol. I. p. 252. See also Brownson's American Republic, pp. 192–196.
3 Lieber's Polit. Ethics, Vol. I. p. 251.
and necessarily, in the state, it cannot pass from it so long as the latter exists.” 1
By this is not meant that the exercise of sovereignty may not be delegated. Such a delegation is of the essence of government. But to delegate to another the exercise of a power within prescribed limits, or for a determinate time or purpose, is no alienation of it, but supposes it to be still virtually in the original hand.
5. Sovereignty, as we have said, is indivisible, but the sovereign body itself is not. The latter may be divided into several sovereigns, each distinct and independent. To be convinced of this, we have but to imagine a body politic split by overwhelming force into several parts. The fragments survive the shock, become new independent societies, and run separate careers. Each is a sovereign society. An instance of such a disruption occurred in the British empire at the time of the American Revolution. Previously to our Declaration of Independence, England was, as she has ever since continued to be, a sovereign society, but of that England the colonies formed a part. When the connection was severed, the “ United Colonies,” by which the separation was effected, became a new political society, independent of the crown, and, as such, invested with all sovereign rights.
6. Finally, two or more sovereign bodies may by force or by consent become united and form a new political society. In such a case, sovereignty forsakes the composing units and becomes inherent in the resulting aggregate. To have that effect, however, it is doubtless necessary that the union should not be a mere juxtaposition, but a fusion, of the constituent elements.
$ 23. The characteristic marks and attributes of sovereignty being comprehended, it is important to ascertain the various modes of its manifestation.
Sovereignty manifests itself in two ways : first, indirectly, through individuals, acting as the agents or representatives of the sovereign, and constituting the civil government; and, secondly, directly, by organic movements of the political society itself, without the ministry of agents; the movements referred to exhibiting themselves either in those social agitations, of which the resultant is known as public opinion, that vis a tergo in all free commonwealths, by which the machinery of government is put and kept in orderly motion; or in manifestations of original power, by which political or social changes are achieved irregularly, under the operation of forces wielded by the body politic itself immediately.
1 Lieber's Polit. Ethics, Vol. I. p. 250.
Of the two direct manifestations of sovereignty indicated, public opinion is by far the most important, the most constant, and the least dangerous. By it is meant, not the opinion of this or that man or class, but the opinion of the body politic, which is the resultant of the concurring, divergent, and clashing opinions of the whole body of the citizens. The object upon which this important social force expends itself is either the government, considered as the servant of the sovereign, or the society employing it, which is the sovereign itself. But the peculiarity of it is, that while constitutions and laws make no allusion to public opinion as a legitimate political force, all administrative agencies bow before it as though it were true, as is often affirmed, that “ the voice of the people is the voice of God."
The other direct manifestation of sovereignty, the irregular exhibition of power, is witnessed when society, by a general and irresistible impulse, does an act because it will do it, taking less account of its lawfulness than of its necessity or desirable. ness, though often, for example's sake, covering its contempt of legal forms with a thin varnish of fiction or sophistry. In plain language, such an exhibition of original power is in the nature of a coup d'état, an act of force originating in lawlessness, but, because done by a body whose power is overwhelming, an act which it were folly to impeach. A striking instance of this sort of original manifestation of sovereignty occurred in England in consummating the Reform movement in 1832. The English people had been excited to the verge of revolution by the agitators for reform in the electoral system. A reform bill, passed by the Commons, had been twice thrown out by the Lords. Neither house giving way, and an outbreak of violence seeming inevitable, the prime minister, Lord Grey, took measures forcibly to carry the bill, when the Lords yielded and allowed it to pass. Here, the organic pressure of the nation, culminating in the ministerial project of deluging the House of Lords with new peers, who would vote for the Reform Bill, consummated a change in the constitution of Parliament upon which the hearts of the people had become fixed. It was a revolution effected by the direct action of the body politic, and not by the vulgar usurpation of a prince or military leader, so common in the history of political revolutions.
1 Lieber's Polit. Ethics, Vol. I. p.
$24. With the indirect manifestations of sovereignty, through the intermediation of agents, all are familiar. Save in the exceptional modes just described, the sovereign exercises the right of sovereignty in no other way than by procuration. It cannot meet to deliberate, as it must do to engage directly in legislation. When laws are established, it cannot in person expound or apply them; nor, when expounded or applied, can it superintend their execution. It is a society sovereign as a totality, but, as such, so unwieldy, that a direct exercise of its functions, save in miniature states, like the ancient democracies, or the city commonwealths of the Middle Ages, is wholly impracticable. For this reason it organizes systems of agencies, to which it delegates the right to exercise such powers as it chooses to grant. The agents holding these delegated powers, collectively considered, constitute the civil government of the society.
In most modern governments, including our own, there are four distinct branches or departments, to which are confided the powers delegated by the sovereign. Of these, the first is the Electors, whose function is that of choosing out of their own number the functionaries employed in the other departments, to which in the United States is added that of enacting the fundamental laws. The electoral body is the most numerous in the state, charged with an official function. It comprises the suffrage-holders, or voters, or, in a qualified sense, the people, and differs from the other three departments in that it constitutes a body which never assembles, but acts in segments of such convenient size as not to render conference and coöperation impracticable.
The other three departments are familiar under the names of legislative, executive, and judicial departments, charged with the duties indicated by those terms respectively.
To these four systems of agencies, common to the best governments of both Europe and America, those of the United States have added a fifth, unknown abroad, – the Constitutional Convention,—whose functions, as we have already seen, are such