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.