Sovereignty.
"The term 'sovereign' or 'sovereignty,'" says Judge Story, "is used in
different senses, which often leads to a confusion of ideas, and
sometimes to very mischievous and unfounded conclusions." Without any
disrespect for Judge Story, or any disparagement of his great learning
and ability, it may safely be added that he and his disciples have
contributed not a little to the increase of this confusion of ideas and
the spread of these mischievous and unfounded conclusions. There is no
good reason whatever why it should be used in different senses, or why
there should be any confusion of ideas as to its meaning. Of all the
terms employed in political science, it is one of the most definite and
intelligible. The definition of it given by that accurate and lucid
publicist, Burlamaqui, is simple and satisfactory--that "sovereignty is
a right of commanding in the last resort in civil society."[60] The
original seat of this sovereignty he also declares to be in the people.
"But," he adds, "when once the people have transferred their right to a
sovereign [i.e., a monarch], they can not, without contradiction, be
supposed to continue still masters of it."[61] This is in strict accord
with the theory of American republicanism, the peculiarity of which is
that the people _never do_ transfer their right of sovereignty, either
in whole or in part. They only delegate to their governments the
exercise of such of its functions as may be necessary, subject always to
their own control, and to reassumption whenever such government fails to
fulfill the purposes for which it was instituted.
I think it has already been demonstrated that, in this country, the only
political community--the only independent corporate unit through which
the people can exercise their sovereignty, is the State. Minor
communities--as those of counties, cities, and towns--are merely
fractional subdivisions of the State; and these do not affect the
evidence that there was not such a political community as the "people of
the United States in the aggregate."
That the States were severally sovereign and independent when they were
united under the Articles of Confederation, is distinctly asserted in
those articles, and is admitted even by the extreme partisans of
consolidation. Of right, they are still sovereign, unless they have
surrendered or been divested of their sovereignty; and those who deny
the proposition have been vainly called upon to point out the process by
which they have divested themselves, or have been divested of it,
otherwise than by usurpation.
Since Webster spoke and Story wrote upon the subject, however, the
sovereignty of the States has been vehemently denied, or explained away
as only a partial, imperfect, mutilated sovereignty. Paradoxical
theories of "divided sovereignty" and "delegated sovereignty" have
arisen, to create that "confusion of ideas" and engender those
"mischievous and unfounded conclusions," of which Judge Story speaks.
Confounding the sovereign authority of the _people_ with the delegated
powers conferred by them upon their _governments_, we hear of a
Government of the United States "sovereign within its sphere," and of
State governments "sovereign in _their_ sphere"; of the surrender by the
States of _part_ of their sovereignty to the United States, and the
like. Now, if there be any one great principle pervading the Federal
Constitution, the State Constitutions, the writings of the fathers, the
whole American system, as clearly as the sunlight pervades the solar
system, it is that _no_ government is sovereign--that all governments
derive their powers from the people, and exercise them in subjection to
the will of the people--not a will expressed in any irregular, lawless,
tumultuary manner, but the will of the organized political community,
expressed through authorized and legitimate channels. The founders of
the American republics never conferred, nor intended to confer,
sovereignty upon either their State or Federal Governments.
If, then, the people of the States, in forming a Federal Union,
surrendered--or, to use Burlamaqui's term, transferred--or if they meant
to surrender or transfer--_part_ of their sovereignty, to whom was the
transfer made? Not to "the people of the United States in the
aggregate"; for there was no such people in existence, and they did not
create or constitute such a people by merger of themselves. Not to the
Federal Government; for they disclaimed, as a fundamental principle, the
sovereignty of any government. There was no such surrender, no such
transfer, in whole or in part, expressed or implied. They retained, and
intended to retain, their sovereignty in its integrity--undivided and
indivisible.
"But, indeed," says Mr. Motley, "the words 'sovereign' and 'sovereignty'
are purely inapplicable to the American system. In the Declaration of
Independence the provinces declare themselves 'free and independent
States,' but the men of those days knew that the word 'sovereign' was a
term of feudal origin. When their connection with a time-honored feudal
monarchy was abruptly severed, the word 'sovereign' had no meaning for
us."[62]
If this be true, "the men of those days" had a very extraordinary way of
expressing their conviction that the word "had no meaning for us." We
have seen that, in the very front of their Articles of Confederation,
they set forth the conspicuous declaration that each State retained "its
_sovereignty_, freedom, and independence."
Massachusetts--the State, I believe, of Mr. Motley's nativity and
citizenship--in her original Constitution, drawn up by "men of those
days," made this declaration:
"The people inhabiting the territory formerly called the
Province of Massachusetts Bay do hereby solemnly and mutually
agree with each other to form themselves into a free,
_sovereign_, and independent body politic, or State, by the name
of _The Commonwealth of Massachusetts_."
New Hampshire, in her Constitution, as revised in 1792, had identically
the same declaration, except as regards the name of the State and the
word "State" instead of "Commonwealth."
Mr. Madison, one of the most distinguished of the men of that day and of
the advocates of the Constitution, in a speech already once referred to,
in the Virginia Convention of 1788, explained that "We, the people," who
were to establish the Constitution, were the people of "thirteen
SOVEREIGNTIES."[63]
In the "Federalist," he repeatedly employs the term--as, for example,
when he says: "Do they [the fundamental principles of the Confederation]
require that, in the establishment of the Constitution, the States
should be regarded as distinct and independent SOVEREIGNS? They _are_ so
regarded by the Constitution proposed."[64]
Alexander Hamilton--another contemporary authority, no less
illustrious--says, in the "Federalist":
"It is inherent in the nature of _sovereignty_, not to be
amenable to the suit of an individual without its consent. This
is the general sense and the general practice of mankind; and
the exemption, as one of the attributes of _sovereignty_, is now
enjoyed by the government of _every State_ in the Union."[65]
In the same paragraph he uses these terms, "sovereign" and
"sovereignty," repeatedly--always with reference to the States,
respectively and severally.
Benjamin Franklin advocated equality of suffrage in the Senate as a
means of securing "the _sovereignties_ of the individual States."[66]
James Wilson, of Pennsylvania, said sovereignty "is in the people before
they make a Constitution, and remains in them," and described the people
as being "thirteen independent sovereignties."[67] Gouverneur Morris,
who was, as well as Wilson, one of the warmest advocates in the
Convention of a strong central government, spoke of the Constitution as
"a _compact_," and of the parties to it as "each enjoying _sovereign_
power."[68] Roger Sherman, of Connecticut, declared that the Government
"was instituted by a number of _sovereign States_."[69] Oliver
Ellsworth, of the same State, spoke of the States as "sovereign
bodies."[70] These were all eminent members of the Convention which
formed the Constitution.
There was scarcely a statesman of that period who did not leave on
record expressions of the same sort. But why multiply citations? It is
very evident that the "men of those days" entertained very different
views of sovereignty from those set forth by the "new lights" of our
day. Far from considering it a term of feudal origin, "purely
inapplicable to the American system," they seem to have regarded it as a
very vital principle in that system, and of necessity belonging to the
several States--and I do not find a single instance in which they
applied it to any political organization, except the States.
Their ideas were in entire accord with those of Vattel, who, in his
chapter "Of Nations or Sovereign States," writes, "Every _nation_ that
governs itself, under what form soever, without any dependence on
foreign power, is a _sovereign state_."[71]
In another part of the same chapter he gives a lucid statement of the
nature of a confederate republic, such as ours was designed to be. He
says:
"Several sovereign and independent states may unite themselves
together by a perpetual confederacy, without each in particular
ceasing to be _a perfect state_. They will form together a
federal republic: the deliberations in common will offer no
violence to _the sovereignty of each member_, though they may,
in certain respects, put some restraint on the exercise of it,
in virtue of voluntary engagements. A person does not cease to
be free and independent, when he is obliged to fulfill the
engagements into which he has very willingly entered."[72]
What this celebrated author means here by a person, is explained by a
subsequent passage: "The law of nations is the law of sovereigns; states
free and independent are moral persons."[73]
[Footnote 60: "Principes du Droit Politique," chap. v, section I; also,
chap. vii, section 1.]
[Footnote 61: Ibid., chap. vii, section 12.]
[Footnote 62: "Rebellion Record," vol. i, Documents, p. 211.]
[Footnote 63: Elliott's "Debates," vol. iii, p. 114, edition of 1836.]
[Footnote 64: "Federalist," No. xl.]
[Footnote 65: Ibid, No. lxxxi.]
[Footnote 66: See Elliott's "Debates," vol. v, p. 266.]
[Footnote 67: Ibid., vol. ii, p. 443.]
[Footnote 68: See "Life of Gouverneur Morris," vol. iii, p. 193.]
[Footnote 69: See "Writings of John Adams," vol. vii, letter of Roger
Sherman.]
[Footnote 70: See Eliott's "Debates," vol. ii, p. 197.]
[Footnote 71: "Law of Nations," Book I, chap. i, section 4.]
[Footnote 72: Ibid., section 10.]
[Footnote 73: Ibid., section 12.]