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CHAPTER V.

SOVEREIGNTY ONE AND INDIVISIBLE.

WHATEVER was done in establishing the constitution of gov

ernment must have been done by sovereignty. Of course, I speak of voluntary action, i. e. free exercise and effectuation of will. So that, if any sovereignty was put in the federal pact, sovereignty must, ex mero motu, have divided itself. It must have exerted its will, whether it intended to divide itself or delegate powers. When this will was exerted, the constitution was made and established, and the said will necessarily existed through the act. We know, then, that it was not sovereignty, but something else, that was put, by sovereignty, in the federal pact. The instrument itself says it was "powers," and that they were "delegated." "Powers," then, were transferred, while the will that did it remained untransferred, in the moral person or persons that acted. We know it did thus remain, for it was exercised by each state on the proposed amendments, several years afterwards. Here, then, we have absolute proof that there is no sovereignty in the constitution, and that sovereignty is out of it, and in the states who ratified and ordained it.

According to

Imagine Kaiser William's Authority divided. philosophy and common sense, the essential idea of the superlative word "sovereignty" is of a will that rules over everything in its territory; and this will presupposes all the other attributes of a perfect mental unity, through which those conclusions of judgment shall be made, and those determinations of will reached, which are indispensable in government. Through just such a mental unity, William of Prussia commands every person and thing in his kingdom. His right of command must be a unity; and to think of what can be maintained, in defiance of his will in his own realm, is to think of what does not divide, but destroys sovereignty; for even if the cap of Gesler can be kept in the market-place, as an emblem, against his will, he is not sovereign, for an opposing will has risen above his own, with all infini

tude to expand in, for domination over what is beneath. The sovereign entity, i. e. the mind or soul having the right of command, is the same (with its perception, reason, judgment, and will) in an aristocracy, and a republic, as in a monarchy.

What say the Publicists? As they all agree, one or two quotations from those of the highest repute will suffice. Vattel says [Book I., § 65]: "Every sovereignty, properly so called, is, in its own nature, one and indivisible." Lieber, in his "Civil Liberty and Self-government" [Ch. XIV.], says: "What, in a philosophical sense, can truly be called sovereignty can never be divided." In his "Political Ethics" [§ 63], he says: "Society can never delegate or pledge away sovereignty;" and that "being inherent naturally and necessarily in the state, it can never pass away from it so long as the latter exists." See also Montesquieu, Locke, Puffendorf, Burlamaqui, Rutherforth, Rousseau, and others.

Enough is now said and quoted to exhibit the mental unity, the moral person, which dwells in one of our societies or states, as its soul, this being sovereign, and acting so continually, through the mental organism and faculties already brought to view.

Any thinking man can see that sovereignty's exercise of its right of government is functional, and involves no change of itself, in place, nature, or right, much less does it divide and conquer itself, committing felo de se. The British sovereignty, the Queen and Parliament, remains at home, in its institutional body, while its governmental agents and agencies go all over the world, bearing and executing "powers." Sovereignty is ever with and in the Czar of Russia, while his agents, with "powers," govern throughout the empire. That of Prussia went to oversee the pounding of France with Thor's hammer. But, though its presence may have increased directing intellect and moral force, it made the shot and steel no more deadly. While one set of sovereignty's agents were using its "powers" to kill and conquer abroad, another set were using its "powers" to govern at home. Of course, republican sovereignty must act in the same way, through "powers" given to agents to be executed by them. Said Chancellor Pendleton: "The people are the fountain of all power. They must, however, delegate it to agents, because . they cannot exercise it in person." [III. Ell. Deb. 298.]

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Rights and Powers are not Sovereignty. disappear from this subject, if we would discard the idea that sovereignty is composed of, or can be divided into, rights and powers.

The general notion of the expounders seems to be, that sovereignty is the sum of all rights and powers, "the embodiment of all powers," to use Mr. A. H. Stephens's expression. They (and he, too, un

fortunately) confound it with the powers which, by delegation and in writing, it entrusts to the governmental agency it creates. They admit the transfer to be by delegation, but say this is a ceding of a part of sovereignty, and irrevocable. Witness the absurdity. The people cannot govern directly: they can do it only by and through this very process of delegation. Now, supposing all their governing powers, federal or state, to be in exercise, the result of such theory would be as follows: If they put one-third of them in the federal constitution, one-third of their governing power is "irrevocably " gone. The residue of two-thirds being vested in the state governments, by precisely the same process, through state conventions, the people have abdicated all of sovereignty, put an end to the republican form of government (which can only exist where they keep the sovereignty and govern absolutely at all times and in all things), and reduced themselves to allegiant subjects of agencies, which they themselves created and empowered, the federal one being paramount, imperial!

The effectuation of this theory, then, is the annihilation of sovereignty. This is the reductio ad absurdum; for sovereignty, whether it is that of a nation or of states, must always be supreme over every person and thing; and, as long as the republic lasts, it must remain in the people as organized, they choosing to politically exist as states, and to govern themselves as such, — separately as to domestic affairs, and conjointly in general and common ones. This is the view of all the fathers.

The dogma that

Sovereignty is not Qualifiable or Limitable. the states have sovereignty, except so far as they have ceded it, if not intended as a deception, is a gross and deplorable blunder; and the following expressions, to be found in the speeches and writings of all American politicians of note, are both amazing and amusing for their solecistic absurdity: "Divided sovereignty," "delegated sovereignty," "qualified sovereignty," "limited sovereignty," "representative sovereignty," "federal sovereignty," "sovereign powers vested in the government," "surrendering essential parts of sovereignty," "dividing sovereignty between the federal and state governments," "the states are sovereign, except so far as they have delegated specific sovereign powers" [Webster], "each state is absolutely sovereign, except as to the limited supreme sovereignty conferred upon the national government" [Story]; and so on, through an immense number and variety of expressions, all absurdly coupling sovereignty with some qualifying word or phrase, or treating of it as susceptible of infinite division, in contempt of the great philologists of the age, who all unite in considering the word superlative in signification, and the entity referred

to as indivisible and inalienable. [See also the opinions of Judges Taney and McLean, 5 How. 588; 21 How. 516.]

We shall soon see that sovereignty is indivisible, and is not composed of, or identical with, rights or powers. Society's sovereignty must be its supreme will over, and, so to speak, ownership of, all persons and things that are put therein. Like ownership, it involves the right of control and command, as well as, to a certain extent, the jus disponendi. Will must be exercised, and must have its mental adjuncts, perception, reason, and judgment. Can this mental unity be disintegrated, so that a part of the faculties can be alienated, and the rest retained? Can the subject persons and things be partitioned, so that some can be under one supreme will and some under another? Can a citizen yield his obedience to more than one ultimate authority? Common sense answers these questions negatively. Two sovereigns cannot have the same subject. No man can serve two masters. But one paramount authority can exist in any country. In a republic, this must reside in the state. It does so in the united states. New York, Texas, or Illinois is, of right, as absolute as King William or the Grand Turk.

Only one Sovereignty over all Persons and Things. - To illustrate this, let us first draw a line from A to B, to present the domain on which sovereignty is to act, say the area of a state: let C represent the national government, and D the state one. Assuming each to have sovereignty (I do not mean mere government, but the original and absolute right of government, the "all-power," which carries right of coercion) over the same territory, as the following figure indicates; inasmuch as they are human, A to B must be a debatable ground, must comprise many points of controversy, and must, finally, become "a field of blood."

A

C

D

B

Our fathers were guilty of no such folly. They always considered the people, and not the governments, as sovereign. They, like Daniel Webster, said: "Sovereignty in government is unknown in North America." Hence, the diagram is reproduced, and extended as fol

lows, E representing the people, i. e. the sovereignty, the source of all government, and C and D its governing agencies:

C

E

D

A

B

Between the two governments, there can be no conflict that requires the ultima ratio to settle the question of sovereignty, for they are both subordinate agents of the people, who themselves have the jura summi imperii [Blackstone] in their respective political organizations. Each is employed and paid to exercise its agency over the whole state, just as two servants might be set at work in the same field; and the said sovereignty can, as to both agencies, assign duties, control, and prevent conflicts. This was the view of the fathers. For example, Madison said, no one dissenting, that "the federal and state governments are, in fact, but different agents and trustees of the people, instituted with different powers" [Fed. 46], the said people "composing thirteen independent sovereignties," and making the constitution in such sovereign capacities. [39 and 40 Fed.; III. Ell. Deb. 94.] Chancellor Pendleton and Judge Marshall, in the Virginia convention, explained in the same way; so did Chancellor Livingston and Alexander Hamilton, in New York. [Supra, 93, 107, 108.] Both constitutions of government were considered part of the fundamental law of a commonwealth, and the two were characterized as "a great political machine." [Read extract from No. 46 Fed., App. D.]

Sovereignty, then, cannot divide itself. Nothing can be excepted from its jurisdiction. And, especially, it cannot become subject to the coercive authority of its own delegations; and it is only enemies or perverters that could pretend that the commonwealths, called the united states, have become so subject. If sovereignty can be divided, it can be done in an aristocracy or a monarchy, as well as a republic, for in each and every case it dwells in a unity or "moral person." The king is the state; the queen and parliament are the state; the aristocracy is the state; and the republic is the state. each there must be a will, a sovereign one, or there is no state.

In

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