sion of most of the misconceptions prevalent as to its true char acter. Thus, the notion has been common among even the well-informed, that the Constitutional Convention is above the law, the Constitution, and the government, all of which it may, therefore, it is conceived, respect and obey or not at its discretion; that it is possessed, in short, of the powers of its revolutionary namesake.

The origin of this misconception is ignorance of the simple facts of our constitutional history above detailed, and of the principles of our political system. To determine the rightful powers of the institution as adapted to our constitutional uses, men point to the English Conventions of 1660 and 1689, to that of the latter year in Massachusetts, to those by which our first Revolution was, in the various American colonies, begun and consummated. Those bodies, which, unquestionably, in many cases, framed Constitutions, were known to be possessed of other and extraordinary powers. They were called by high-sounding titles: "The Estates of the Realm;" "The People in their Primary and Sovereign Capacity;"-phrases, in whose indefiniteness could be discovered, or concealed, all possible attributions of power. The error has received additional currency from the extraordinary proceedings of the Conventions held in France, particularly that which piloted her upon the breakers in the closing years of the last century. Was not the Convention of our first ally, it is asked, which uprooted the monarchy and laid the foundations of the French Republic, an institution borrowed from us, an institution, therefore, which has not here developed the extraordinary powers, exhibited by it in France, only because our occasions have never called them forth? The upshot of this reasoning is, the establishment of the axiom, that a Constitutional Convention wields all the powers, which, by the law of nature or of nations, are conceded to exist in the sovereign for which it acts a degree of omnipotence to which, in a government of law, there can be found no parallel, and which is inconsistent with the fundamental principles of American liberty.

16. The Constitutional Convention, then, I consider as an exotic, domesticated in our political system, but in the process so transformed as to have become an essentially different institution from what it was as a Revolutionary Convention. In 1 See Appendix A, post.

the following pages an attempt will be made to vindicate the accuracy of that view by inquiring into the institution in all its relations, as well to the people as to the government in its various departments, connecting with the theoretical considerations necessarily involved in the discussion, historical sketches of such Conventions as have thus far been held in the United States.

§ 17. Before proceeding to this inquiry, it will be useful to develop, with such completeness as space will allow, two fundamental conceptions, to which 'reference will be constantly made in the following pages, that of Sovereignty, or of a sovereign Body; and that of a Constitution, or Law fundamental, as distinguished from an ordinary municipal law.

Without an accurate comprehension of these two subjects, it will be impossible to arrive at the truth in relation to the institution we are considering, since the first, being the source and foundation of all just authority in the state,1 determines its powers; and the second, being the object, to create which or to aid in creating which that institution is employed, ascertains the field of its operations. To these conceptions, therefore, will be devoted the two following chapters.

1 The word state is used in this treatise, first, generally, to denote any organized political community; that is, synonymously with commonwealth; and, secondly, in a limited sense, to designate a member of the American Union. When employed in the former sense, it begins with a small letter, and when in the latter, with a capital.

CHAPTER II.

OF SOVEREIGNTY.

§ 18. By the term sovereign is meant the person or body of persons in a state, to whom there is, politically, no superior.1 Sovereignty is the state or condition of being a sovereign — the possession of sovereign powers.2

19. The marks by which the possession of sovereignty may be determined, in particular cases, have been thus described by Mr. John Austin, one of the most eminent authorities upon the philosophy of jurisprudence:

"The superiority," says he, " which is styled sovereignty, and the independent political society which sovereignty implies, is distinguished from other superiority, and from other society, by the following marks or characters:

1 The term sovereign is derived from a low-Latin word, supranus, formed from supra, by the following transformations: soprano, sovrano, souverain, sovereign. Du Cange, in verb. Milton spells the word sovran. Richardson's Dictionary, in

verb.

The meaning of the term sovereignty, then, is simply superiority; but it is, humanly speaking, an absolute superiority. Rutherforth, in his Institutes of Natural Law, contends, not without reason, that when we speak of relative superiority, we use the word supremacy. He says: "Whenever we speak of sovereign power or of supreme power, we are led into some mistakes by using these words indiscriminately. When we call any power supreme, the expression seems to be relative to some other subordinate powers; to call any power the highest of all is not very intelligible, if there are no other powers below it. Sovereign power is also a relative term; but then it has not a necessary relation to subordinate powers. To call any power by the name of sovereign power, does not necessarily imply that there are any other powers in subordination to it. Whatever power is independent, so as not to be subject to any other power, though it has in the mean time no other power subject to itself, may with propriety enough be called by this name. In short, that power may well be called sovereign to which none is superior; whereas none can be called supreme, unless there are others inferior to it." Book II. ch. 1v. pp. 75, 76.

2 Dr. Lieber, in his Political Ethics, defines sovereignty from the point of view of its moral limitations, thus: "The necessary existence of the state, and that right and power which necessarily flow from it, is sovereignty."

"1. The bulk of the given society are in a habit of obedience or submission to a determinate and common superior, let that common superior be a certain individual person, or a certain body or aggregate of individual persons.

"2. That certain individual, or that certain body of individuals, is not in a habit of obedience to a determinate human superior.

"Or, the notions of sovereignty and independent political soci ety may be expressed concisely thus: If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that deter minate superior is sovereign in that society, and the society (including the superior) is a society political and independent."

1

§ 20. It is impossible to describe sovereignty with greater completeness or felicity, but I shall venture to add to the marks given by Mr. Austin two not unrelated to them, expressed in terms more familiar to the jurisprudence of the United States. They are these:

1. Whenever, within the same territorial limits, there exist two political organizations, or two political entities, so related to each other that one determines its own powers and jurisdiction, and, in so doing, limits, enlarges, or abolishes those of the other, being at the same time itself, not only subject to no reciprocal modification, but independent of all the world, the former is a sovereign organization or entity, and the latter is not.

2. Whatever, historically considered, may have been the original relations of two political bodies at present distinguished from each other by the mark indicated, the powers wielded by the inferior must be conceived as delegated by the superior, since at no moment would its possession of them continue without the consent of that superior.2

This follows from the definition of sovereignty, and will aid us further on, when we come to consider the question of sovereignty in the United States.

§ 21. With the abstract question of the ground upon which the right of sovereignty rests, I shall not concern myself.

1 Austin, The Province of Jurisprudence Determined, Vol. I. p. 170.

2 Id. p. 337.

The principal theories as to the ground of sovereignty, and, consequently, as to the ultimate foundation of civil government, are, that it rests, first, upon

A question of less difficulty, and, for my purpose, of greater practical importance, is, where theoretically considered, and without reference to particular states- does sovereignty reside, and what are its attributes?

To the first branch of the question, the answer is: sovereignty resides in the society or body politic; in the corporate unit resulting from the organization of many into one, and not in

Divine appointment; secondly, upon compact, and, thirdly, upon the development of natural forces, according to natural laws.

In reference to these theories, I shall only observe, that, rightly considered, they and the numerous modifications of them, which figure in the books, seem to me to be expressions of the same truth, seen from different points of view, and naturally seen with different degrees of clearness and completeness. Thus, if the phenomena of civil society be viewed with particular reference to Divine Providence, whose interposition, whether special or general, through the operation of natural laws, is unquestionably a principal, if not the exclusive component of the forces whose resultant is the state, the ground of those phenomena might, not without apparent reason, be regarded as the Divine will. Let the attention, on the other hand, be directed chiefly to the fact, apparent in any political society during even the stormiest periods of its history, that the bulk, the majority in weight and influence, if not in numbers, of its members, acquiesce in, (see post, § 65,) perhaps have formally assented to, the forms of its social and political organization, and it would seem proper to refer those forms to a compact between the individuals composing it. But if, beside the Divine will, and beside the apparent consent or agreement of those who constitute the bulk of a society, account be taken, as it certainly ought, of the will of men, often perverse, always unstable, and which, if a will at all, whatever theologians may say, is not determined by the Divine will, but is independent of it; the will of men, too, not comprised in that bulk of the society which seems to organize political institutions by compact, but constituting a protesting or rebellious minority, by whose hostile pressure or assault those institutions are modified, though not determined; and if, further, account be taken of the natural or historical conditions of soil, climate, laws, degree of civilization, habits, passions, aversions, religion, and race, all of which are constantly appearing elements of the social problem in every state, whatever its rank in the scale of civilization; it would seem reasonable to ground sovereignty and civil government upon the development of natural forces, according to natural laws. By this view, the problems of political philosophy are problems of vital dynamics; the state is an object of natural history, like a coral reef, a swarm of bees, or a family of beavers; a composite animal, a union of many persons into one, but a vital union, not a mere aggregation by accident or choice of individuals by nature independent of each other; a union dating from the creation of the parts, and, therefore, under some form and conditions, a necessary union. The way in which such a composite being achieves what measure it does of social life and development, under the combined operation of all the social forces indicated, together with the modes of operation of these forces, are the constitution and laws of that being.