The conception of political sovereignty
is one of those interesting portions
of doctrine which belong in common to
several distinct branches of study. No
systematic discussion of any part of the
science of politics can advance very far
without it; and it is even more indispensable
to the student of legal systems
than to the student of politics. It is a
question central to the life of states and
to the validity of law.
And it is rendered the more interesting
by the fact that it is a critical question,
used by all schools alike as a capital test
of orthodoxy. No man who cares a whit
about his standing among students of law
or of politics can afford to approach it
lightly. Whatever he says about it he
must needs say with a profound sense of
responsibility. He must undertake the
discussion of it with the same sort of
gravity, with the same deep sense of personal
risk, that the political economist
evinces when he ventures an opinion about
Value or hazards a theory of Distribution.
When once he has committed himself to
an opinion concerning it, he may be sure
that with a large and influential number
of his fellow-students he can never thereafter
pass for a man of undoubted scholarship
or unclouded sense.
If it is awkward, under such circumstances,
that the conception should be so
indispensable, it doubtless has the advantage
of forcing boldness upon us. If for
nothing else than for the sake of a modus
vivendi, we must out with whatever notion
it is that we have accepted or invented
with reference to the nature and lodgement
of sovereignty. It is, on the whole,
safer to be explicit than to hedge.
And yet it is not easy to be explicit; for
there are no suitable terms to be explicit
with. One no sooner begins to examine
the field and the matter of controversy
than he begins to suspect that it is all a
question of terminology. After being
hurried in bewilderment through one of
Browning’s short poems without being
permitted to be quite sure at any point of
the full meaning, we are led in our disappointment
to wonder, with Mr. Birrell, if
it can be the punctuation. In what we
read of sovereignty we are led to wonder
if it can be the words that confuse us. It
must be evident to every one who has not
been sophisticated by the terms themselves,
or committed beyond retrieval by
the controversial use of them, that when,
for example, the people of the United
States and the Czar of Russia are put together
in the same class as sovereigns,
language has been forced to a very artificial
use, and one term made to cover
radically different things. There is clearly
a striking contrast between these two
sovereigns, in character, in method, and
in power. Doubtless an excellent way
by which to enter our subject would be
through an examination of this difference.
But another way is more direct.
Let us begin with an accepted definition
of sovereignty. It is both decent
and convenient to take that of Austin,
that celebrated definition which he received
through Bentham from Hobbes.
Austin conceived a sovereign very concretely,
as a person or body of persons existing
in an independent political society
and accorded the habitual obedience of
the bulk of the members of that society,
while itself subordinate to no political
superior. Law he defined to be the explicit
or implicit command of such a person
or body of persons, addressed to the
members of the community, its inferiors
or subjects. He took it for granted that
in every independent community supreme
political authority did actually vest in
some such determinate sovereign person
or body of persons.
By the very term used to describe it,
moreover, this sovereignty is supremacy—is
subject to no limitation. Every law
is a command, not only, but the command
of a supreme authority; and it would be a
singular contradiction in terms to speak
of this supreme power as limited by law.
How can the supreme author of law
within a state himself be subject to law:
how can the creature bind the creator?
How can one refrain from smiling at the
logical incapacity of those who speak of
limitations to sovereignty, or, more absurdly
still, of divisions of sovereignty?
Is there a hierarchy of supremacies: can
there be a co-ordination of creators?
Austin had studied in Bonn while it was
the residence of such men as Niebuhr,
Schlegel, Arndt, Welcher, Mackeldey, and
Heffter, and at a period when controversy
touching some of the fundamental questions
concerning the province and method
of jurisprudence was in its keen youth.
His thought was mature, indeed, before
he went abroad, and nature had very imperatively
commanded of what sort that
thought should be by giving him a mind
framed for abstract conception and sharp
logical processes; but contact with German
thinking contributed many important
elements to his mental equipment. Thibaut
became scarcely less his master than
Bentham. It was inevitable that it should
be Thibaut rather than Savigny. Savigny
believed that all law was rooted in old
habit, and that legislation could modify
law successfully and beneficially only by
consenting to the secondary rôle of supplementing,
formulating, or at most guiding
custom. He was at weapons drawn
with the school of Thibaut, which proposed
to lay legislative hands on the
entire body of German law, make a code
which should be common to all the German
States, and so help to make Germany
a national unit. To attempt thus to
systematize law, where by natural development
it was unsystematic, seemed to
Savigny a deliberate effort to render it
artificial. Law, he maintained, did not
often grow into a logical system, but was
the product of daily accretions of habit
and sluggish formations of thought, which
followed no system of philosophy. It was
not the business of legal science to force
it into logical categories; it was its function,
rather, to give a clear explanation of
the principles and order of its life and a
satisfactory working analysis of its several
parts and conceptions. Thibaut, on
the other hand, believed it to be the legitimate
function of the jurist to make piecemeal
law up into organic wholes, rendering
it clear where it had been obscure, correcting
its inconsistencies, trimming away
its irregularities, reducing the number of
its exceptional provisions, discovering and
filling in its gaps, running it through
with threads of system, giving it elegance
of style and completeness of method. He
thought it possible to change law from a
system of habits into a system of commands.
These were, of course, the ideas
which were most attractive, most congenial,
to the mind of Austin.
But, however natural such conceptions
may have been to Austin, it must certainly
be regarded as singular that, although
rejected on the Continent, where
sovereignty had throughout the most important
formative periods of European
history been quite unequivocally lodged
in unmistakable sovereigns, these notions
should have been accepted in England, the
land where law had been least subject to
doctrine, most observant of times and circumstances,
most piecemeal in its manner
of construction, least like a set of commands,
and most like a set of habits and
conventions. Doubtless we are to remember,
however, that the feudal theory of
law had long been held with perfect confidence
by English lawyers in calm despite
of fact. Probably it is true that the
English mind (our own), with its practical
habit, likes nice systems well enough because
of their appearance of completeness,
has a sense of order which enjoys
logic, without having any curiosity or
capacity for the examination of premises.
The Englishman has always been found
ready to accept, from those who had the
leisure to amuse themselves in that way,
interesting explanations of his institutions
which did not at all fit the actual facts.
It has caused him no inconvenience, for
he has not perceived the lack of adjustment
between his actual transactions and
the theory he has accepted concerning
them. He has, of course, not troubled
himself to alter his institutions to suit his
philosophy. That philosophy satisfied
his thought and inconvenienced neither
Parliament nor the law courts. And so
he had no doubt Austin was right.
Austin’s logic is unrelenting, and the
loyalty of his followers unflinching. Sir
Henry Maine having shown that throughout
the greater part of history the world
has been full of independent political societies
possessing no law-making sovereign
at all, and it having become notorious
that legislation has everywhere played a
late and comparatively subordinate part
in the production of law, the latest writers
of the Austinian school have reduced
jurisprudence to a merely formal science,
professing to care nothing for the actual
manner in which law may originate,
nothing even for most of the motives
which induce men to obey law, provided
you will but concede that there is,
among a great many other imperative
motives, one which is universally operative,
namely, the fear of the compulsion of
physical force, and that there is at least
one sovereign function, namely, the application
of that physical force in the carrying
out of the law. They ask to be
allowed to confine themselves to such a
definition of positive law as will limit it
to “rules which are enforced by a political
superior in his capacity as such.” They
take for their province only a systematic
description of the forms and method “of
the influence of government upon human
conduct” through the operation of law.
They thus virtually abandon the attempt
to find any universal doctrines respecting
the rôle of government as a maker of laws.
For them government is not a creative
agent, but only an instrumentality for the
effectuation of legal rules already in existence.
So hard is the principle of life to
get at that they give over all attempts to
find it, and, turning away from the larger
topics of the biology, restrict themselves
to the morphology, of law.
When it came to pointing out the body
of persons with which sovereignty was
lodged in particular states of complex
constitutional structure, Austin was sometimes
very unsatisfactory. Sovereignty is
lodged in England, he says, in the king,
the peers, and—not the House of Commons,
but—the electorate. For he holds
the House of Commons to be merely a
trustee of the electors, notwithstanding
the fact that the electors exercise their
right of franchise under laws which Parliament
itself enacted and may change. In
the United States he “believes” it to be
lodged “in the States’ governments, as
forming an aggregate body;” and he explains
that by the government of a State
he does not mean its “ordinary legislature,
but the body of its citizens which
appoints its ordinary legislature, and
which, the Union apart, is properly sovereign
therein.” Apparently he is led thus
to go back of the House of Commons and
the legislatures of our States to the electorates
by which they are chosen, because
of his conception of sovereignty as unlimited.
If he stopped short of the electors,
some part of his sovereign body
would be subject to political superiors. If
he were to go beyond the electors, to the
larger body of the people—to the women
and the children and the men who cannot
vote—he would come upon, not a “determinate,”
but an indeterminate body of persons.
Our own writers, however, having made
bold to embrace the dogma of popular
sovereignty with a certain fervor of patriotism,
have no hesitation about taking
the additional step. They maintain, with
Lieber, that “according to the views of
free men,” sovereignty “can dwell with
society, the nation, only.” Writers like
the late Judge Jameson, of Chicago, declare
that they have very definite ideas of
what this means. They think that Mr.
Bryce expounded the doctrine when he
wrote his chapter on “Government by
Public Opinion.” “When the true sovereign
has spoken,” says Judge Jameson,
“at public meetings, by the press, or by
personal argument or solicitation, the electorate,
when it acts, either registers the
behests of the people or ceases betimes
further to represent them.” “The pressure
of public opinion consciously brought
to bear upon the electorate,” he declares
to be, even when “inarticulate” (whatever
inarticulate pressure may be), “a
clear and legitimate exercise of sovereign
power;” and he thinks that Mr. Herbert
Spencer meant the same thing when he
declared that “that which, from hour to
hour, in every country, governed despotically
or otherwise, produces the obedience
making political action possible, is the accumulated
and organized sentiment felt
towards inherited institutions made sacred
by tradition,” inasmuch as Mr. Spencer
proceeds to say with all plainness,
“Hence it is undeniable that, taken in
its widest acceptation, the feeling of the
community is the sole source of political
power; in those communities, at least,
which are not under foreign domination.
It is so at the outset of social life, and
it still continues substantially so.” And
yet, if Mr. Spencer means the same thing
that Judge Jameson means, what are we
to think of the present fraternization of
France and Russia? If the people be
sovereign in France and the Czar sovereign
in Russia, it is doubtless quite conceivable
that one sovereign should love
another; but if it be true, as Judge Jameson
makes Mr. Spencer say, that it is the
people, even in Russia, who are after all
sovereign, what are we to think of the
fondness of the French sovereign for a
government which is holding the Russian
sovereign in subjection? If this be correct
thinking, it puts us into awkward
quandaries, troubling our logic as well as
condemning our lives.
Apply this doctrine of our masters in
American law to our actual political conditions,
and see how far it simplifies the
matter. In the United States (so runs the
orthodox creed) the People is sovereign.—the
verb is singular because the people,
under this doctrine, constitute a unit. And
yet it is notorious that they never have
acted as a unit, nor ever can act as a unit
under our existing constitution. They
have always acted, and must always act,
in state groups. And in state groups
what action do they take? They assent
to constitutional provisions, or refuse to
assent to them; and they select certain
persons to act as law-makers, as judges,
or as executive officers of government.
Do they choose policies? No. Do they
frame constitutional provisions? Certainly
not; they only accept or reject
them. In the only case in which they
speak directly concerning specific provisions
of law, they neither command nor
originate. They receive or decline what
is offered them. They must wait until
they are asked. They have neither initiative
nor opportunity to construct. They
must be consulted concerning government,
but they do not conduct it.
Nor is it otherwise, upon last analysis, in
Switzerland, where the Referendum exists,
where, that is, the people vote upon specific
measures of ordinary legislation not
only, but where they are also provided
with means of imperative initiative in
legislation. By petitions bearing a certain
large number of signatures they can
propose definite legislation, compel action
upon the matter of their petitions by their
legislatures, and an ultimate submission
of the question to popular vote. But see
what this is, when examined. The eyes of
the community, the men of observation
and progress, get up a petition; that is,
an indeterminate body and a minority
demand that certain laws be formulated
and put to the vote. The thing is done,
but the measure defeated, let us suppose,
at the polls. The eyes of the community
have desired certain things, have offered
them to the slow digestive organs, and
they have been rejected. Are the digestive
organs, then, sovereign, and not the
initiative parts, the eyes and the reason?
Is it sovereign to stomach a thing, and
not sovereign to purpose a thing?
But turn the chase in another direction,
if peradventure we may yet run the sovereign
people to cover. The more absolute
democratic theorists decline to
restrict the sovereign body to the electorate,
to those who have formal votes.
Voters are simply the agents of the community,
they say. The press and the
pulpit, the private argument and the
curtain lecture, command—voters, if they
are faithful, obey. Others, no less democratic,
but more precise, seek for a more
determinate body, content themselves with
the qualified voters, and think with relief
that all difficulties are removed. The
electorate is sovereign.
But is the electorate a more determinate
body than the population? Does registration
afford us any more certain results
than the census yields? Do the electors
act in determinate numbers? Is there a
quorum? Have they any choice but to act
under the forms and within the limits assigned
by law? Can they command without
invitation, or assent without suggestion?
Are not the agencies which Judge
Jameson calls sovereign after all more active,
more self-directed, freer to criticise,
to suggest, to insist? The newspapers,
the clergymen, the mass-meeting orators,
the urgent friends, the restless, ambitious
wives, the pert and forward children can
at any rate keep on talking in the intervals,
when the electors are reduced to
silence, patiently awaiting an opportunity
to vote. Certainly, if we can accept this
miscellaneous sovereign of men-women-and-children,
the history of sovereignty
is much simplified. This determinate
body of persons, the free population, is
always present, and always has been present,
under all constitutions. All that we
have to inquire is, What means had they
for expressing their will? How were
their dispositions and judgments made to
tell upon the consciousness of those who
framed the laws? True, this sovereign
body has its points of resemblance to the
god Baal. Those who call upon it call in
vain, if it be not the season appointed
for voting; there is no voice, nor any
that answer, nor any that regardeth. No
fire consumes the sacrifice. Perhaps the
People is talking, or is pursuing, or is in
a journey, or peradventure it sleepeth,
and must be awaked.
Surely this is a singular undertaking,
this mad pursuit of a sovereign amidst
the obvious phenomena of politics! If
laws be indeed commands, the commands
of a determinate person or body of persons,
it ought to be possible to discover
this determinate source of authority without
much curious research. And yet it
would seem that it demands ingenious
analysis. Look how uneasily Mr. Sidgwick
casts about in the last chapter of his
recent “Elements of Politics,” to find Supreme
Political Power—which is his name
for sovereignty. He has been looking forward
to this inquiry, not without nervousness,
throughout the chapters which precede.
Political power is exercised, he
perceives, through some organ of government;
but he cannot conceive that the
power of this organ is its own power. He
engages in a study of dynamics. What
moves this organ: whence does it derive
its power? How is it influenced? Is it
itself commanded, overawed, constrained
from any quarter? This is a door to the
metaphysics of government. Taking a
prince as a simple and normal organ of
government, he analyzes the subjection
of princes to their ministers, to priests, to
mistresses, to the violent protests of an
insubordinate people. No influence that
the prince can throw off without losing
his own authority, he thinks, can be a sovereign
influence; but any influence which
can threaten his power if he resists is a
sovereign influence, the true depository
of supreme political power. Sovereignty
thus becomes a catalogue of influences.
Can we accept these singular processes?
If a physicist were to discard all the separate
laws, all the differential analysis of
his science, and were to reduce its entire
body of principles to some general statement
of the correlation of forces, he
would hardly be conceived to have done
physics a service. If in our study of
anatomy we should turn away from structural
adjustment and functional force to
take account of the thousand and one influences
which in individual cases affect
the organs from without, we should obviously
be abandoning the science itself. It
seems to me that we do a very like thing
if, in studying the structural forces and
organic actions of society, its organs of
origination and command, its organs of
execution, its superior and its subordinate
authorities, its habitual modes of structural
life, we abandon all attempts at
differentiation, throw all analysis into
hotch-potch, and reduce everything to
terms of the general forces which mould
and govern society as a whole. We confuse
our thought in our effort to simplify
it. We lose, we do not gain, by putting
powers of radically different sorts together
into the same categories, and driving
them abreast, as if they pulled together,
in the same propositions.
There is no unlimited power, except
the sum of all powers. Our legal theorists
have sought unlimited sovereignty
by a process of summation; have made
it consist in the combined forces of the
community. Sovereignty, if it be a definite
and separable thing at all, is not
unlimited power; is not identical with
the powers of the community. It is not
the general vitality of the organism, but
the specific originative power of certain
organs. Sovereigns have always been
subject in greater or less degree to the
community; have always been organs of
the State; have never been the State itself.
But they have been sovereigns none
the less; they, and not the community
over which they presided.
It is necessary, if there is to be any
clear thinking at all upon this subject,
to distinguish very sharply two radically
different things; namely, the powers and
processes of governing, on the one hand,
from the relations of the people to those
powers and processes, on the other. Those
relations are relations of assent and obedience;
and the degree of assent and obedience
marks in every case the limits, that
is, the sphere, of sovereignty. Sovereignty
is the daily operative power of framing
and giving efficacy to laws. It is the
originative, directive, governing power.
It lives; it plans; it executes. It is the
organic origination by the State of its
law and policy; and the sovereign power
is the highest originative organ of the
State. It is none the less sovereign because
it must be observant of the preferences
of those whom it governs. The
obedience of the subject has always limited
the power of the sovereign. “The
Eastern politicians never do anything,”
says Burke, “without the opinion of the
astrologers on the fortunate moment....
Statesmen of a more judicious
prescience look for the fortunate moment
too; but they seek it, not in the conjunctions
and oppositions of planets, but in
the conjunctions and oppositions of men
and things.” This is the covert admission
of the Austinian definition itself:
the sovereign power is that to which
“the bulk of the community is habitually
obedient.” When we discuss, with Mr.
Sidgwick, the influences which tell upon
the action of the originative organs of
the State, we are not discussing sovereignty,
but the natural and universal
limitations of sovereignty, the structural
checks and balances of the organism.
There is no hope for theory if we neglect
these obvious distinctions.
At all times and under all systems there
have been two sets of phenomena visible
in government: the phenomena of command
and the phenomena of obedience,
the phenomena of governing and the
phenomena of being governed. Obedience,
moreover, is not always an automatic
or unconscious thing. It is a
submission of the will—an acquiescence
which is either the product of choice, of
necessity, or of habit. This has been observed
from the first; was observed by
Bodin, from whom we get our word sovereignty,
and much of our conception of the
thing, sovereignty. He perceived that
the supremacy of the sovereign—even of
the mediæval French sovereign before his
eyes—was in fact limited, the frontiers
of sovereignty being marked by certain
antecedent rights, by divers established
prerogatives of property and vested privilege—not
a scientific, but a natural frontier,
lying along the old mountains of
habit, the well-known rivers of precedent.
We know that the history of politics
has been the history of liberty; a history
of the enlargement of the sphere of independent
individual action at the expense
of the sphere of dictatorial authority. It
has revealed a process of differentiation.
Certain freedoms of opinion and utterance,
of choice of occupation and of allegiance,
of fair trial and equitable condemnation,
have been blocked out as inviolable territories,
lying quite beyond the jurisdiction
of political sovereignty. Beginning
with that singular and interesting order
of the classical states of the ancient world,
under which the individual was merged
in the community and liberty became
identical with a share in the exercise of
the public power, we witness something
like a gradual disintegration, a resolution
of the State into its constituent elements,
until at length those who govern and
those who are governed are no longer
one and the same, but stand face to face
treating with one another, agreeing upon
terms of command and obedience, as at
Runnymede. Conditions of submission
have been contested, and, as liberty has
gained upon authority, have been jealously
formulated. The procedure and
the prerogatives of authority have been
agreed upon; liberty has encroached upon
sovereignty and set bounds to it. The
process is old; only some of its results
are new. What both political philosophers
and political revolutionists have
sought for time out of mind has been a
final definition for that part of the Austinian
conception which concerns the habitual
obedience of the community. These
definitions, in their practical shape as
institutions, we now call constitutions.
At last peoples have become conscious of
their relations to the highest powers of
the State, and have sought to give permanence
and certainty to those relations
by setting the conditions of their subordination
fast in stubborn practices or in the
solemn covenants of written documents.
A constitution government has always
had; but not until this latest age these
deliberate formulations of principle and
practice which determine the whole organization
and action of the State, the
domain of authority, the neutral territory
of liberty, the postulates of obedience.
Constitutions are definitive rather than
creative. They sum up experiences. They
register consents. Assuredly Mr. Spencer
is right when he declares that that which
in every country, under whatever system
governed, “produces the obedience making
political action possible, is the accumulated
and organized sentiment of the community
towards inherited institutions,”
and that “the feeling of the community
is the sole source of political power.”
But this does not mean what Judge Jameson
reads into it, that sovereignty and the
feeling of the community are one and the
same thing; that the conditions of sovereignty
and the exercise of sovereignty
are identical. Sovereignty has at all
times and under all systems of government
been dependent upon the temper
and disposition of the people. The will
of the community, the inclinations and
desires of the body politic as a whole,
are always, in the last analysis, the foundation,
as they are also in many instances
the direct and immediate source, of law.
But these preferences of the general body
are exercised by way of approval or disapproval,
acquiescence or resistance; they
are not agencies of initial choice. The
sanctioning judgments of a people are
passive, dormant, waiting to have things
put to them, unable themselves to suggest
anything, because without organs of utterance
or suggestion. I cannot predicate
sovereignty of my physical parts,
but must ascribe it to my will, notwithstanding
the fact that my physical parts
must assent to the purposes of my will,
and that my will is dependent upon their
obedience. The organism unquestionably
dominates the organs; but there are organs,
nevertheless, organs of origination,
which direct and rule with a sovereign
presidency.
A written constitution adopted by popular
vote affords, perhaps, some of the
nicest tests of theory. Here we have the
most specific form of popular assent. In
such a document the powers of the government
are explicitly set forth and specifically
lodged; and the means by which
they may be differently constituted or bestowed
are definitively determined. Now
we know that these documents are the
result of experience, the outcome of a
contest of forces, the fruits of struggle.
Nations have taken knowledge of despotism.
They have seen authority abused
and have refused to submit; have perceived
justice to be arbitrary and hidden
away in secret tribunals, and have insisted
that it be made uniform and open; have
seen ministers chosen from among favorites,
and have demanded that they be
taken from among representatives of the
people; have found legislation regardful
of classes, and have clamored to have
laws made by men selected without regard
to class; have felt obedience irksome because
government was disordered in form
and confused in respect of responsibility,
and have insisted that responsibility be
fixed and forms of order and publicity
observed. Sometimes only a steady practice
has accomplished all this; sometimes
documentary securities have been demanded.
These documentary securities
are written constitutions.
It is easy, as it is also impressive, to
believe that a written constitution proceeds
from the people, and constitutes
their sovereign behest concerning government.
But of course it does not. It proceeds
always either from some ordinary
or from some extraordinary organ of the
state; its provisions are the fruit of the
debated determinations of a comparatively
small deliberative body, acting
usually under some form of legal commission.
It is accepted as a whole and
without discrimination by the diffused,
undeliberative body of voters.
What confuses our view is the fact that
these formal documentary statements of
the kinds and degrees of obedience to
which the people assent, the methods of
power to which they submit, the sort of
responsibility upon which they insist,
have become, from the very necessity of
their nature, a distinct and superior sort
of precise and positive law. We seek the
sovereign who utters them. But they
are not the utterances of a sovereign.
They are the covenants of a community.
Time out of mind communities have made
covenants with their sovereigns. When
despotism in France was ‘tempered by
epigram,’ the sharp tongues of the wits
spoke, after a sort, the constitution of the
country,—a positive law whose sanction
was ridicule. But the wits were not sovereign;
the salons did not conduct government.
Our written constitutions are
only very formal statements of the standards
to which the people, upon whom
government depends for support, will
hold those who exercise the sovereign
power.
I do not, of course, deny the power
of the people. Ultimately they condition
the action of those who govern; and it is
salutary that it should be so. It is wise
also, if it be not indispensable, that the
extent and manner of their control should
be explicitly set forth and definitively
agreed upon in documents of unmistakable
tenor. I say simply that such control
is no new thing. It is only the precise
formulation of it that is new.
If it seem to be after all a question of
words, a little closer scrutiny will disclose
the fact that it is much more than that.
Mr. Ritchie, of Oxford University, in an
able article on “The Conception of Sovereignty,”
contributed to the Annals of the
American Academy of Political and Social
Science (January, 1891), perceiving some
part of the distinction that I have pointed
out, and wishing to realize it in his
thought, proposes to distinguish three
several kinds of sovereigns: viz. a nominal
sovereign—the English queen, for example;
a legal sovereign—the law-making
body; and a political sovereign—the voters,
whom we might call the sovereign of
appeal. But why not confine ourselves
to substantives, if we may, and avoid the
quicksands of adjectives? Sovereignty is
something quite definite; so also is power;
so also is control. Sovereignty is
the highest political power in the state,
lodged in active organs, for the purposes
of governing. Sovereign power is a positive
thing; control a negative thing.
Power belongs to government, is lodged
in organs of initiative; control belongs to
the community, is lodged with the voters.
To call these two things by the same
name is simply to impoverish language
by making one word serve for a variety
of meanings.
It is never easy to point out in our
complex modern governments the exact
organs in which sovereignty is lodged.
On the whole, however, it is always safe
to ascribe sovereignty to the highest
originative or law-making body of the
state,—the body by whose determinations
both the tasks to be carried out by the
Administration and the rules to be applied
by the courts are fixed and warranted.
Even where the courts utter authoritative
interpretations of what we call the
fundamental law—the law that is embodied
in constitutions—they are rather the
organs through which the limitations of
sovereignty are determined than organs
of sovereignty itself. They declare the
principles of that higher, constituent law
which is set above sovereignty, which
expresses the restrictions set about the
exercise of sovereign authority. Such
restrictions exist in all states, but they
are given definite formulation only in
some. As for the Executive, that is the
agent, not the organ, of sovereignty.
But, even if it be comparatively easy
thus to fix upon the organs of sovereignty
in a unitary state, what shall we say of
a federal state? How apply our analysis
to that? One is tempted to declare, with
Dr. Merkel, of Strassburg, that federal
states give direct contradiction of fact to
prevailing theories respecting the necessity
for unity of power, indivisibility of
sovereignty. Here, as he says, we have
organs and authorities in possession of
powers exclusively their own, for the furtherance
of functions necessary to the
ends of the state as a whole, existing side
by side with organs also in full possession
of powers exclusively their own, for the
furtherance of the local and special functions
of the member states. We know,
moreover, that these two sets of organs
are in fact co-ordinate; that the powers of
the states were not derived from the federal
authority, were even antecedent to the
powers of the federal government, and
historically quite independent of them.
And yet no one who ponders either the
life or the formal structure of a federal
state can fail to perceive that there is,
after all, an essential unity in it, the virtual
creation of a central sovereignty.
The constituent act—the manner in which
the government was created—can, I conceive,
have nothing to do with our analysis
in this matter. The way in which the
federal state came into existence is immaterial
to the question of sovereignty within
it after it has been created. Originative
life and action, the characteristic attributes
of sovereignty, come after that.
Character and choice are postponed to
birth, sovereignty to the creation of the
body politic. The constituent act creates
a thing capable of exercising sovereignty.
After the creative law has done its part,
by whatever process, then the functions
of independent life begin. Thereafter,
in all federal states, even the amendment
of the fundamental law becomes an organic
act, depending, practically without
exception, upon the initiative of the chief
originative organ of the federal state.
Confederations are here out of the question.
They are, of course, associations
of sovereigns. In the federal state self-determination
with respect to their law as
a whole has been lost by the member
states. They cannot extend, they cannot
even determine, their own powers conclusively
without appeal to the federal authorities.
They are unquestionably subject
to a political superior. They are
fused, subordinated, dominated. Though
they do not exercise their powers by virtue
of delegation, though their powers
are indeed inherent and in a very important
sense independent, they are yet
inferior to a body whose own powers are
in reality self-determined, however much
that self-determination may be hedged
about and clogged by the forms of the
fundamental federal law. They are still
states, because their powers are original
and inherent, not derivative; because their
political rights are not also legal duties;
and because they can apply to their commands
the full imperative sanctions of
law. But their sphere is limited by the
presiding and sovereign powers of a state
superordinated to them, the extent of
whose authority is determined, under
constitutional forms and guarantees, by
itself. They have dominion; but it has
sovereignty. For with the federal state
lie the highest powers of originative legal
determination, the ultimate authority to
warrant change and sanction jurisdiction.
Our thought is embarrassed throughout
such an analysis by the very fact which
invalidates the Austinian conception and
makes a fresh analysis necessary. Very
little law literally originates in command,
though its formulation and enforcement
must unquestionably be effected
through the commanding authorities of
the state. It is their function to direct,
to lead, rather than to command. They
originate forms, but they do not discover
principles. In a very profound sense law
proceeds from the community. It is the
result of its undeliberate as well as of its
deliberate developments, of its struggles,
class against class, interest against interest,
and of its compromises and adjustments
of opinion. It follows, slowly, its
ethical judgments, more promptly its material
necessities. But law issues thus
from the body of the community only in
vague and inchoate form. It must be
taken out of the sphere of voluntary and
uncertain action and made precise and
invariable. It becomes positive law by
receiving definition and being backed by
an active and recognized power within
the state. The sovereign organ of a state
is, therefore, very properly said to be its
law-making organ. It transmutes selected
tendencies into stiff and urgent
rules. It exercises a sovereign choice
in so doing. It determines which tendencies
shall be accepted, which checked
and denied efficacy. It forms the purposes
of the state, avoiding revolution
if it form them wisely and with a true insight.
This is sovereignty:—to sit at the
helm and steer, marking out such free
courses for the stanch craft as wind and
weather will permit. This is the only
sort of sovereignty that can be exercised
in human affairs. But the pilot is sovereign,
and not the weather.
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