ernment of the state, retires from view, and, except by the pres-sure of opinion, or by power from time to time irregularly applied, ceases to interfere in the conduct of affairs; in this respect, dealing with the system established by it as the Deity dealt with the universe, when, having created it, He left it, as it were, "wound up," to run according to the laws He had ordained, and interfered with it only by affecting the consciences of men, or occasionally, perhaps, by special providences, when some crisis demanded it. In the act of retiring thus the sovereign virtually says: "These are my agents. What this proclaims, in the forms prescribed, you shall consider as law. To this, I have given power to expound and apply the law, and to this, power to carry the law into effect, using, if needful, the entire public force. When the system I have established needs reparation or renewal, let this body propose, and this other ratify,, the needed changes. Here is the commission by whose letter or spirit all are to be guided the Constitution."

Now, respecting a system thus established, what presumptions arise as against any other system or institution springing up by its side, unknown or hostile to it?

a pre

1. That, at any given time, the sovereign body is content with the establishment now existing, created by its own actsumption arising from the very fact that that establishment: exists.

2. That if the sovereign body desired a change in the structure or functions of the government founded by itself, it would prefer to indicate that desire through its own agents, and not through strangers or persons standing to it in no official relation; and that it would choose to effect such change by some authorized organic action of the system itself, whereby harmony between governors and governed would be assured, rather than by irregular methods, as by exhibitions of original power by itself, or by usurpations on the part of individuals or public bodies, savoring of revolution, and rendering such harmony impossible.

These, I apprehend, are the presumptions warranted by the relations indicated. Applying these as a test to the case of political action, the following corollaries are justified:

1. That all interference with the frame or working of a government established, by persons ab extra, that is, not commis

sioned for that purpose by the government itself, is usurpation, though participated in by every citizen in the Commonwealth, and is therefore illegal and revolutionary.'

2. That whenever a public body, belonging to the governmental system established by the sovereign, assumes, without an express warrant in the Constitution, laws, or approved customs of the country, to meddle with that Constitution, with the laws, or with the public administration, it is guilty of usurpation, and its acts are null and void.

§ 26. In the general discussion of sovereignty, in the preceding sections, that power has been supposed to reside in the body politic, comprising the whole population of the Commonwealth, without distinction of age or sex. This presents the theoretical view of the question. It is important for my purpose to go beyond this, and ascertain how far the theoretical view corresponds with historical or existing facts, and if discrepancies should appear, to explain their causes and character.

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The question may be considered with reference, I., to Foreign States; and II., to the United States of America.

I. In most civilized states abroad, there is much confusion of ideas in regard to the location of the sovereign power. In some, it is placed in the monarch or chief executive officer, who, in fact, exercises wide, and often unlimited, powers. In others, it is located in a close corporation of nobles, wielding similar powers. In a third class, comprising governments of a mixed character, with a monarch, a privileged nobility, and a commonalty representing the nation at large, the latter is practically recognized as the true sovereign. But while in this case there is a real conformity to principles, the fiction is entertained that the monarch is the fountain of all power, the sovereign in fact, as in name. In the other two varieties, the existence of the nation as a power distinct from the court, is ignored in law, and appears as a fact only in those terrible moments when the giant, overthrown and trodden under foot of his servants, heaves beneath them, crumbling to pieces the structures founded upon the theory of his permanent subjection. The course of history demonstrates that the power of the nation is always in the long run superior to that of any fraction of it, and needs but to

1 For an exposition of the import of the terms revolution and revolutionary as used in this treatise, see ch. iv. §§ 109–113.

be called out. What Sully has said of the populace, is true of nations: "They never rebe from a desire of attacking, but from an impatience of suffering." When the limit of endurance has been reached, governments and dynasties are in their presence but as flax before the fire. If the body politic, like Gulliver among the Lilliputians, is bound by the pigmy tribe intrusted with its protection, it is not because it has lost either its power or its right, nor because in its betrayers there exists that irresistible potency which is everywhere recognized as the basis of dominion. The despotism practised by them is a permissive one, founded on the good nature, the inertness or the temporary distraction of its victims. Let the step too far be taken, and it springs up sovereign by a title as indisputable as a decree of fate that of superior force.

In the states in question, then, the real sovereign is the body politic, as theory requires. But in most of them, the true sovereign has allowed itself to be stripped of its robes of state by usurping servants. Its very existence as a fountain of au· thority is denied, the relations of superior and inferior being, practically, through the supineness of the former, reversed.

§ 27. II. I come now to the most important question of all, namely,

Where lies the sovereignty in the United States, and how does it exist in the person or body ascertained to be the depositary thereof?

1. The first branch of this question may be considered from two points of view, in the main independent of each other, namely: (a), from that of the elementary principles of sover eignty, developed in the foregoing sections; and (6), from that of historical facts and principles evolved in the life of this and other peoples, and having a tendency to determine the question of American nationality.

A short space will be devoted to this question from each of these points of view.

(a). Distinguishing the territory and people of the United States from the residue of the territory and peoples of the earth, and considering the same as forming an independent society, it is evident that the right of sovereignty resides somewhere within it in as ample a measure as in any other political society.

The difficulty is, in the jumble of National and State organi zations, to locate it.

Recurring now to the definition and marks or tests of sovereignty laid down in this chapter, let us see if it be possible to find, with their help, where that power probably resides in the United States.

A sovereign person or body, as we have seen, is one to whom there is, politically, no superior.

Contrasting the State governments, as political organizations, with the Federal government as a political organization, it is evident that the former cannot be said to be sovereign, or by consequence to be possessed of sovereignty, either collectively or individually, since if their equality with the Federal government were conceded, they certainly are not its superior. But their equality cannot be conceded. By the Constitution of the United States, that instrument and the laws of the United States, made in pursuance thereof, are declared to be the su preme law of the land, and the judges in every State are to be bound thereby, and all State officials, legislative, executive, and judicial, are to be bound by oath to support that Constitution. If, therefore, it might seem from the fact that a separate and independent jurisdiction is apportioned to the several States on the one hand, and to the general government on the other, that they are equal to each other, these clauses of the Constitution show that such is not the case, but that, in all that wide field, where the powers of both are concurrent, or where it is doubtful with which the power is lodged, and collisions occur or impend, the latter is to be taken as supreme. If either of the two, therefore, the States or the general government, is sovereign, it is not the former but the latter.

But is it true, that sovereignty is lodged with the general gov ernment?

Applying the same principles, and, in their light, contrasting the federal government with the people of the United States, the only other imaginable depositary of sovereign powers, it is clear that those powers must belong to the latter and not to the former, for two reasons. 1. The people of the United States "ordained and established" the Federal government, createc il. As between creator and creature, the former must be the po litical superior of the latter. 2. Governments are always sec.

ondary and vicarious. They are agencies, and to suppose them possessed of sovereign powers, is to make those powers alienable beyond redemption, which is opposed to the true conception of sovereignty. It is rather the people of the United States, who, having created, may be presumed competent to alter or abolish, their government, that is the true sovereign.

So much for the inferences to be drawn from the definition of sovereignty.

§ 28. Let us now subject the three political bodies or entities specified to a rigid scrutiny, to see if in either of them there can be discovered the distinguishing marks of sovereignty above described.

"If a determinate human superior," says Mr. Austin,1 "not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society."

What political body, institution, or entity is there, in the United States, not in a habit of obedience to any other body, etc., which receives habitual obedience from the bulk of the Union, but the people of the United States? It certainly is not the States, for they have habitually obeyed, each and all of them, the people of the United States ever since the latter entered into a union as one people.2 The people of the United States, in 1788, threw the existing Constitutions of the several States into hotchpotch, and repartitioned amongst those bodies the powers they were thenceforth to exercise, giving a portion thereof to the States, a portion to the general government, and reserving the residue to themselves. And the States have habitually conformed to the edict which thus curtailed and ascertained their powers.

Not only this: the States, since the foundation of the Union, have not received "habitual obedience from the bulk" of the Union; certainly not, severally considered; for while the respective States have received habitual obedience, each from the bulk of its own people, they have not received it severally from the peoples of the other States; that is, the State of Virginia has

See ante, § 19.

2 The word habitually is inserted by Mr. Austin in this test of sovereignty to cover the very case lately presented by the United States; that is, the case in which a part of the society should be for a time in revolt against the sovereign whole. It is the general habit of all the parts to obey, that is to determine where the sovereignty resides.