Chapter 68

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.]