« 이전계속 »
as to rank it as a legislature, but a special legislature, whose duty it is to participate in the framing or amending of Constitutions.
Of these five departments, the last four represent the sovereign only mediately, – those who fill them being either elected, in accordance with legal provisions, by the first, the electors, or appointed by some coördinate department. The electors, on the other hand, represent the sovereign immediately, being designated by the latter in the original act constituting the government, the Constitution.
It is evident that neither of the five systems of agencies named is possessed of sovereignty, though by delegation, mediate or immediate, they all exercise more or less of its powers. There is observable amongst them, moreover, a gradation : first, with respect to the extent to which they are vested with sovereign powers; and, secondly, with respect to the nearness of their relations to their head, the sovereign. Thus, in both particulars, the electoral body ranks high, since it stands, as we have seen, nearest to the sovereign, and its functions, though limited, are extremely important. The two legislative departments are vested with powers more extensive than any others: the convention, with power to frame the fundamental laws, to be passed upon by the electors; and the legislature, with the broad powers of remedial and punitory legislation. After these follow the executive and judiciary, charged severally with functions more limited, though of vast importance to the state.
On the whole, if required to marshal the five systems of agencies according to their relative rank, to be determined by the degree in which, in the various respects indicated, they represent the sovereign power, I should place them thus: 1, the Electors; 2, the Legislature; 3, the Convention; 4, the Executive; and 5, the Judiciary.
§ 25. Before proceeding further with the discussion of sovereignty, I desire to draw from what has preceded one or two corollaries having a direct practical bearing on the main subject of this treatise, the Constitutional Convention, its powers and functions. These corollaries are deducible from the principles enunciated above, by the aid of what I may call the doctrine of constitutional presumptions, which may be explained as follows:
The sovereign, having once established agencies for the government of the state, retires from view, and, except by the pressure of opinion, or by power from time to time irregularly applied, ceases to interfere in the conduct of affairs; in this respect, dealing with the system established by it as the Deity dealt with the universe, when, having created it, He left it, as it were, "wound up,” to run according to the laws He had ordained, and interfered with it only by affecting the consciences of men, or occasionally, perhaps, by special providences, when some crisis demanded it. In the act of retiring thus the sovereign virtually says: “ These are my agents.
“ These are my agents. What this proclaims, in the forms prescribed, you shall consider as law. To this, I have given power to expound and apply the law, and to this, power to carry the law into effect, using, if needful, the entire public force. When the system I have established needs reparation or renewal, let this body propose, and this other ratify, the needed changes. Here is the commission by whose letter or spirit all are to be guided — the Constitution.”
Now, respecting a system thus established, what presumptions arise as against any other system or institution springing up by its side, unknown or hostile to it?
They are two:
1. That, at any given time, the sovereign body is content with the establishment now existing, created by its own actsumption arising from the very fact that that establishment exists.
2. That if the sovereign body desired a change in the structure or functions of the government founded by itself, it would prefer to indicate that desire through its own agents, and not through strangers or persons standing to it in no official relation; and that it would choose to effect such change by some authorized organic action of the system itself, whereby harmony between governors and governed would be assured, rather than by irregular methods, as by exhibitions of original power by itself, or by usurpations on the part of individuals or public bodies, savoring of revolution, and rendering such harmony impossible.
These, I apprehend, are the presumptions warranted by the relations indicated. Applying these as a test to the case of political action, the following corollaries are justified :
1. That all interference with the frame or working of a government established, by persons ab extra, that is, not commis
sioned for that purpose by the government itself, is usurpation, though participated in by every citizen in the Commonwealth, and is therefore illegal and revolutionary.
2. That whenever a public body, belonging to the governmental system established by the sovereign, assumes, without an express warrant in the Constitution, laws, or approved customs of the country, to meddle with that Constitution, with the laws, or with the public administration, it is guilty of usurpation, and its acts are null and void.
26. In the general discussion of sovereignty, in the preceding sections, that power has been supposed to reside in the body politic, comprising the whole population of the Commonwealth, without distinction of age or sex. This presents the theoretical view of the question. It is important for my purpose to go beyond this, and ascertain how far the theoretical view corresponds with historical or existing facts, and if discrepancies should appear, to explain their causes and character.
The question may be considered with reference, — I., to Foreign States; and II., to the United States of America.
I. In most civilized states abroad, there is much confusion of ideas in reference to the locus of the sovereign power. In some, it is placed in the monarch or chief executive officer, who, in fact, exercises wide, and often unlimited, powers. In others, it is located in a close corporation of nobles, wielding similar powers. In a third class, comprising governments of a mixed character, with a monarch, a privileged nobility, and a commonalty representing the nation at large, the latter is prac.. tically recognized as the true sovereign. But while in this case there is a real conformity to principles, the fiction is entertained that the monarch is the fountain of all power, the sovereign in fact, as in name. In the other two varieties, the existence of the nation as a power distinct from the court, is ignored in law, and appears as a fact only in those terrible moments when the giant, overthrown and trodden under foot of his servants, heaves beneath them, crumbling to pieces the structures founded upon the theory of his permanent subjection. The course of history demonstrates that the power of the nation is always in the long run superior to that of any fraction of it, and needs but to
1 For an exposition of the import of the terms revolution and revolutionary, as used in this treatise, see ch. iv. SS 109–113.
be called out. What Sully has said of the populace, is true of nations: “ They never rebel from a desire of attacking, but from an impatience of suffering.” When the limit of endurance has been reached, governments and dynasties are in their presence but as flax before the fire. If the body politic, like Gulliver among the Lilliputians, is bound by the pigmy tribe intrusted with its protection, it is not because it has lost either its power or its right, nor because in its betrayers there exists that irresistible potency which is everywhere recognized as the basis of dominion. The despotism practised by them is a permissive one, founded on the good nature, the inertness or the temporary distraction of its victims. Let the step too far be taken, and it springs up sovereign by a title as indisputable as a decree of fate - that of superior force.
In the states in question, then, the real sovereign is the body politic, as theory requires. But in most of them, the true sovereign has allowed itself to be stripped of its robes of state by usurping servants. Its very existence as a fountain of au. thority is denied, the relations of superior and inferior being, practically, through the supineness of the former, reversed.
$ 27. II. I come now to the most important question of all, namely,
Where lies the sovereignty in the United States, and how does it exist in the person or body ascertained to be the depositary thereof?
1. The first branch of this question may be considered from two points of view, in the main independent of each other, namely: (a), from that of the elementary principles of sovereignty, developed in the foregoing sections; and (b), from that of historical facts and principles evolved in the life of this and other peoples, and having a tendency to determine the question of American nationality.
A short space will be devoted to this question from each of these points of view.
(a). Distinguishing the territory and people of the United States from the residue of the territory and people of the earth, and considering the same as forming an independent society, it is evident that the right of sovereignty resides somewhere within it in as ample a measure as in any other political society.
The difficulty is, in the jumble of National and State organizations, to locate it.
Recurring now to the definition and marks or tests of sovereignty laid down in this chapter, let us see if it be possible to find, with their help, where that power probably resides in the United States.
A sovereign person or body, as we have seen, is one to whom there is, politically, no superior.
Contrasting the State governments, as political organizations, with the Federal government as a political organization, it is evident that the former cannot be said to be sovereign, or by consequence to be possessed of sovereignty, either collectively or individually, since if their equality with the Federal government were conceded, they certainly are not its superior. But their equality cannot be conceded. By the Constitution of the United States, that instrument and the laws of the United States, made in pursuance thereof, are declared to be the supreme law of the land, and the judges in every State are to be bound thereby, and all State officials, legislative, executive, and judicial, are to be bound by oath to support that Constitution. If, therefore, it might seem from the fact that a separate and independent jurisdiction is apportioned to the several States on the one hand, and to the general government on the other, that they are equal to each other, these clauses of the Constitution show that such is not the case, but that, in all that wide field, where the powers of both are concurrent, or where it is doubtful with which the power is lodged, and collisions occur or impend, the latter is to be taken as supreme. If either of the two, therefore, the States or the general government, is sovereign, it is not the former but the latter.
But is it true, that sovereignty is lodged with the general government?
Applying the same principles, and, in their light, contrasting the federal government with the people of the United States, — the only other imaginable depositary of sovereign powers, it is clear that those powers must belong to the latter and not to the former, for two reasons. 1. The people of the United States “ ordained and established" the Federal government, - created it. As between creator and creature, the former must be the political superior of the latter. 2. Governments are always sec