IIIPOLITICAL SOVEREIGNTY
Theconception of political sovereignty is one of those interesting portions of doctrine which belong in common to several distinct branches of study. No systematic discussion of any part of the science of politics can advance very far without it; and it is even more indispensable to the student of legal systems than to the student of politics. It is a question central to the life of states and to the validity of law.
And it is rendered the more interesting by the fact that it is a critical question, used by all schools alike as a capital test of orthodoxy. No man who cares a whit about his standing among students of law or of politics can afford to approach it lightly. Whatever he says about it he must needs say with a profound sense of responsibility. He must undertake the discussion of it with the same sort ofgravity, with the same deep sense of personal risk, that the political economist evinces when he ventures an opinion about Value or hazards a theory of Distribution. When once he has committed himself to an opinion concerning it, he may be sure that with a large and influential number of his fellow-students he can never thereafter pass for a man of undoubted scholarship or unclouded sense.
If it is awkward, under such circumstances, that the conception should be so indispensable, it doubtless has the advantage of forcing boldness upon us. If for nothing else than for the sake of amodus vivendi, we must out with whatever notion it is that we have accepted or invented with reference to the nature and lodgement of sovereignty. It is, on the whole, safer to be explicit than to hedge.
And yet it is not easy to be explicit; for there are no suitable terms to be explicit with. One no sooner begins to examine the field and the matter of controversy than he begins to suspect that it is all a question of terminology. After being hurried in bewilderment through one of Browning’s short poems without beingpermitted to be quite sure at any point of the full meaning, we are led in our disappointment to wonder, with Mr. Birrell, if it can be the punctuation. In what we read of sovereignty we are led to wonder if it can be thewordsthat confuse us. It must be evident to every one who has not been sophisticated by the terms themselves, or committed beyond retrieval by the controversial use of them, that when, for example, the people of the United States and the Czar of Russia are put together in the same class as sovereigns, language has been forced to a very artificial use, and one term made to cover radically different things. There is clearly a striking contrast between these two sovereigns, in character, in method, and in power. Doubtless an excellent way by which to enter our subject would be through an examination of this difference. But another way is more direct.
Let us begin with an accepted definition of sovereignty. It is both decent and convenient to take that of Austin, that celebrated definition which he received through Bentham from Hobbes. Austin conceived a sovereign very concretely,as a person or body of persons existing in an independent political society and accorded the habitual obedience of the bulk of the members of that society, while itself subordinate to no political superior. Law he defined to be the explicit or implicit command of such a person or body of persons, addressed to the members of the community, its inferiors or subjects. He took it for granted that in every independent community supreme political authority did actually vest in some such determinate sovereign person or body of persons.
By the very term used to describe it, moreover, this sovereignty is supremacy—is subject to no limitation. Every law is a command, not only, but the command of a supreme authority; and it would be a singular contradiction in terms to speak of this supreme power as limited by law. How can the supreme author of law within a state himself be subject to law: how can the creature bind the creator? How can one refrain from smiling at the logical incapacity of those who speak of limitations to sovereignty, or, more absurdly still, of divisions of sovereignty?Is there a hierarchy of supremacies: can there be a co-ordination of creators?
Austin had studied in Bonn while it was the residence of such men as Niebuhr, Schlegel, Arndt, Welcher, Mackeldey, and Heffter, and at a period when controversy touching some of the fundamental questions concerning the province and method of jurisprudence was in its keen youth. His thought was mature, indeed, before he went abroad, and nature had very imperatively commanded of what sort that thought should be by giving him a mind framed for abstract conception and sharp logical processes; but contact with German thinking contributed many important elements to his mental equipment. Thibaut became scarcely less his master than Bentham. It was inevitable that it should be Thibaut rather than Savigny. Savigny believed that all law was rooted in old habit, and that legislation could modify law successfully and beneficially only by consenting to the secondaryrôleof supplementing, formulating, or at most guiding custom. He was at weapons drawn with the school of Thibaut, which proposed to lay legislative hands on theentire body of German law, make a code which should be common to all the German States, and so help to make Germany a national unit. To attempt thus to systematize law, where by natural development it was unsystematic, seemed to Savigny a deliberate effort to render it artificial. Law, he maintained, did not often grow into a logical system, but was the product of daily accretions of habit and sluggish formations of thought, which followed no system of philosophy. It was not the business of legal science to force it into logical categories; it was its function, rather, to give a clear explanation of the principles and order of its life and a satisfactory working analysis of its several parts and conceptions. Thibaut, on the other hand, believed it to be the legitimate function of the jurist to make piecemeal law up into organic wholes, rendering it clear where it had been obscure, correcting its inconsistencies, trimming away its irregularities, reducing the number of its exceptional provisions, discovering and filling in its gaps, running it through with threads of system, giving it elegance of style and completeness of method. Hethought it possible to change law from a system of habits into a system of commands. These were, of course, the ideas which were most attractive, most congenial, to the mind of Austin.
But, however natural such conceptions may have been to Austin, it must certainly be regarded as singular that, although rejected on the Continent, where sovereignty had throughout the most important formative periods of European history been quite unequivocally lodged in unmistakable sovereigns, these notions should have been accepted in England, the land where law had been least subject to doctrine, most observant of times and circumstances, most piecemeal in its manner of construction, least like a set of commands, and most like a set of habits and conventions. Doubtless we are to remember, however, that the feudal theory of law had long been held with perfect confidence by English lawyers in calm despite of fact. Probably it is true that the English mind (our own), with its practical habit, likes nice systems well enough because of their appearance of completeness, has a sense of order which enjoyslogic, without having any curiosity or capacity for the examination of premises. The Englishman has always been found ready to accept, from those who had the leisure to amuse themselves in that way, interesting explanations of his institutions which did not at all fit the actual facts. It has caused him no inconvenience, for he has not perceived the lack of adjustment between his actual transactions and the theory he has accepted concerning them. He has, of course, not troubled himself to alter his institutions to suit his philosophy. That philosophy satisfied his thought and inconvenienced neither Parliament nor the law courts. And so he had no doubt Austin was right.
Austin’s logic is unrelenting, and the loyalty of his followers unflinching. Sir Henry Maine having shown that throughout the greater part of history the world has been full of independent political societies possessing no law-making sovereign at all, and it having become notorious that legislation has everywhere played a late and comparatively subordinate part in the production of law, the latest writers of the Austinian school have reducedjurisprudence to a merely formal science, professing to care nothing for the actual manner in which law may originate, nothing even for most of the motives which induce men to obey law, provided you will but concede that there is, among a great many other imperative motives, one which is universally operative, namely, the fear of the compulsion of physical force, and that there is at least one sovereign function, namely, the application of that physical force in the carrying out of the law. They ask to be allowed to confine themselves to such a definition of positive law as will limit it to “rules which areenforcedby a political superior in his capacity as such.” They take for their province only a systematic description of the forms and method “of the influence of government upon human conduct” through the operation of law. They thus virtually abandon the attempt to find any universal doctrines respecting therôleof government as amakerof laws. For them government is not a creative agent, but only an instrumentality for the effectuation of legal rules already in existence. So hard is the principle of life toget at that they give over all attempts to find it, and, turning away from the larger topics of the biology, restrict themselves to the morphology, of law.
When it came to pointing out the body of persons with which sovereignty was lodged in particular states of complex constitutional structure, Austin was sometimes very unsatisfactory. Sovereignty is lodged in England, he says, in the king, the peers, and—notthe House of Commons, but—the electorate. For he holds the House of Commons to be merely a trustee of the electors, notwithstanding the fact that the electors exercise their right of franchise under laws which Parliament itself enacted and may change. In the United States he “believes” it to be lodged “in the States’ governments, as forming an aggregate body;” and he explains that by the government of a State he does not mean its “ordinary legislature, but the body of its citizens which appoints its ordinary legislature, and which, the Union apart, is properly sovereign therein.” Apparently he is led thus to go back of the House of Commons and the legislatures of our States to the electoratesby which they are chosen, because of his conception of sovereignty asunlimited. If he stopped short of the electors, some part of his sovereign body would be subject to political superiors. If he were to go beyond the electors, to the larger body of the people—to the women and the children and the men who cannot vote—he would come upon, not a “determinate,” but an indeterminate body of persons.
Our own writers, however, having made bold to embrace the dogma of popular sovereignty with a certain fervor of patriotism, have no hesitation about taking the additional step. They maintain, with Lieber, that “according to the views of free men,” sovereignty “can dwell with society, the nation, only.” Writers like the late Judge Jameson, of Chicago, declare that they have very definite ideas of what this means. They think that Mr. Bryce expounded the doctrine when he wrote his chapter on “Government by Public Opinion.” “When the true sovereign has spoken,” says Judge Jameson, “at public meetings, by the press, or by personal argument or solicitation, the electorate,when it acts, either registers the behests of the people or ceases betimes further to represent them.” “The pressure of public opinion consciously brought to bear upon the electorate,” he declares to be, even when “inarticulate” (whatever inarticulate pressure may be), “a clear and legitimate exercise of sovereign power;” and he thinks that Mr. Herbert Spencer meant the same thing when he declared that “that which, from hour to hour, in every country, governed despotically or otherwise, produces the obedience making political action possible, is the accumulated and organized sentiment felt towards inherited institutions made sacred by tradition,” inasmuch as Mr. Spencer proceeds to say with all plainness, “Hence it is undeniable that, taken in its widest acceptation, the feeling of the community is the sole source of political power; in those communities, at least, which are not under foreign domination. It is so at the outset of social life, and it still continues substantially so.” And yet, if Mr. Spencer means the same thing that Judge Jameson means, what are we to think of the present fraternization ofFrance and Russia? If the people be sovereign in France and the Czar sovereign in Russia, it is doubtless quite conceivable that one sovereign should love another; but if it be true, as Judge Jameson makes Mr. Spencer say, that it is the people, even in Russia, who are after all sovereign, what are we to think of the fondness of the French sovereign for a government which is holding the Russian sovereign in subjection? If this be correct thinking, it puts us into awkward quandaries, troubling our logic as well as condemning our lives.
Apply this doctrine of our masters in American law to our actual political conditions, and see how far it simplifies the matter. In the United States (so runs the orthodox creed) the People is sovereign.—the verb is singular because the people, under this doctrine, constitute a unit. And yet it is notorious that they never have acted as a unit, nor ever can act as a unit under our existing constitution. They have always acted, and must always act, in state groups. And in state groups what action do they take? They assent to constitutional provisions, or refuse toassent to them; and they select certain persons to act as law-makers, as judges, or as executive officers of government. Do they choose policies? No. Do they frame constitutional provisions? Certainly not; they only accept or reject them. In the only case in which they speak directly concerning specific provisions of law, they neither command nor originate. They receive or decline what is offered them. They must wait until they are asked. They have neither initiative nor opportunity to construct. They must be consulted concerning government, but they do not conduct it.
Nor is it otherwise, upon last analysis, in Switzerland, where theReferendumexists, where, that is, the people vote upon specific measures of ordinary legislation not only, but where they are also provided with means of imperative initiative in legislation. By petitions bearing a certain large number of signatures they can propose definite legislation, compel action upon the matter of their petitions by their legislatures, and an ultimate submission of the question to popular vote. But see what this is, when examined. The eyes ofthe community, the men of observation and progress, get up a petition; that is, an indeterminate body and a minority demand that certain laws be formulated and put to the vote. The thing is done, but the measure defeated, let us suppose, at the polls. The eyes of the community have desired certain things, have offered them to the slow digestive organs, and they have been rejected. Are the digestive organs, then, sovereign, and not the initiative parts, the eyes and the reason? Is it sovereign to stomach a thing, and not sovereign to purpose a thing?
But turn the chase in another direction, if peradventure we may yet run the sovereign people to cover. The more absolute democratic theorists decline to restrict the sovereign body to the electorate, to those who have formal votes. Voters are simply the agents of the community, they say. The press and the pulpit, the private argument and the curtain lecture, command—voters, if they are faithful, obey. Others, no less democratic, but more precise, seek for a more determinate body, content themselves with the qualified voters, and think with reliefthat all difficulties are removed. The electorate is sovereign.
But is the electorate a more determinate body than the population? Does registration afford us any more certain results than the census yields? Do the electors act in determinate numbers? Is there a quorum? Have they any choice but to act under the forms and within the limits assigned by law? Can they command without invitation, or assent without suggestion? Are not the agencies which Judge Jameson calls sovereign after all more active, more self-directed, freer to criticise, to suggest, to insist? The newspapers, the clergymen, the mass-meeting orators, the urgent friends, the restless, ambitious wives, the pert and forward children can at any rate keep on talking in the intervals, when the electors are reduced to silence, patiently awaiting an opportunity to vote. Certainly, if we can accept this miscellaneous sovereign of men-women-and-children, the history of sovereignty is much simplified. This determinate body of persons, the free population, is always present, and always has been present, under all constitutions. All that wehave to inquire is, What means had they for expressing their will? How were their dispositions and judgments made to tell upon the consciousness of those who framed the laws? True, this sovereign body has its points of resemblance to the god Baal. Those who call upon it call in vain, if it be not the season appointed for voting; there is no voice, nor any that answer, nor any that regardeth. No fire consumes the sacrifice. Perhaps the People is talking, or is pursuing, or is in a journey, or peradventure it sleepeth, and must be awaked.
Surely this is a singular undertaking, this mad pursuit of a sovereign amidst the obvious phenomena of politics! If laws be indeed commands, the commands of a determinate person or body of persons, it ought to be possible to discover this determinate source of authority without much curious research. And yet it would seem that it demands ingenious analysis. Look how uneasily Mr. Sidgwick casts about in the last chapter of his recent “Elements of Politics,” to find Supreme Political Power—which is his name for sovereignty. He has been looking forwardto this inquiry, not without nervousness, throughout the chapters which precede. Political power is exercised, he perceives, through some organ of government; but he cannot conceive that the power of this organ is its own power. He engages in a study of dynamics. What moves this organ: whence does it derive its power? How is it influenced? Is it itself commanded, overawed, constrained from any quarter? This is a door to the metaphysics of government. Taking a prince as a simple and normal organ of government, he analyzes the subjection of princes to their ministers, to priests, to mistresses, to the violent protests of an insubordinate people. No influence that the prince can throw off without losing his own authority, he thinks, can be a sovereign influence; but any influence which can threaten his power if he resists is a sovereign influence, the true depository of supreme political power. Sovereignty thus becomes a catalogue of influences.
Can we accept these singular processes? If a physicist were to discard all the separate laws, all the differential analysis of his science, and were to reduce its entirebody of principles to some general statement of the correlation of forces, he would hardly be conceived to have done physics a service. If in our study of anatomy we should turn away from structural adjustment and functional force to take account of the thousand and one influences which in individual cases affect the organs from without, we should obviously be abandoning the science itself. It seems to me that we do a very like thing if, in studying the structural forces and organic actions of society, its organs of origination and command, its organs of execution, its superior and its subordinate authorities, its habitual modes of structural life, we abandon all attempts at differentiation, throw all analysis into hotch-potch, and reduce everything to terms of the general forces which mould and govern society as a whole. We confuse our thought in our effort to simplify it. We lose, we do not gain, by putting powers of radically different sorts together into the same categories, and driving them abreast, as if they pulled together, in the same propositions.
There is no unlimited power, exceptthe sum of all powers. Our legal theorists have sought unlimited sovereignty by a process of summation; have made it consist in the combined forces of the community. Sovereignty, if it be a definite and separable thing at all, is not unlimited power; is not identical with the powers of the community. It is not the general vitality of the organism, but the specific originative power of certain organs. Sovereigns have always been subject in greater or less degree to the community; have always been organs of the State; have never been the State itself. But they have been sovereigns none the less; they, and not the community over which they presided.
It is necessary, if there is to be any clear thinking at all upon this subject, to distinguish very sharply two radically different things; namely, the powers and processes of governing, on the one hand, from the relations of the people to those powers and processes, on the other. Those relations are relations of assent and obedience; and the degree of assent and obedience marks in every case the limits, that is, the sphere, of sovereignty. Sovereigntyis the daily operative power of framing and giving efficacy to laws. It is the originative, directive, governing power. It lives; it plans; it executes. It is the organic origination by the State of its law and policy; and the sovereign power is the highest originative organ of the State. It is none the less sovereign because it must be observant of the preferences of those whom it governs. The obedience of the subject has always limited the power of the sovereign. “The Eastern politicians never do anything,” says Burke, “without the opinion of the astrologers on the fortunate moment.... Statesmen of a more judicious prescience look for the fortunate moment too; but they seek it, not in the conjunctions and oppositions of planets, but in the conjunctions and oppositions of men and things.” This is the covert admission of the Austinian definition itself: the sovereign power is that to which “the bulk of the communityis habitually obedient.” When we discuss, with Mr. Sidgwick, the influences which tell upon the action of the originative organs of the State, we are not discussing sovereignty,but the natural and universal limitations of sovereignty, the structural checks and balances of the organism. There is no hope for theory if we neglect these obvious distinctions.
At all times and under all systems there have been two sets of phenomena visible in government: the phenomena of command and the phenomena of obedience, the phenomena of governing and the phenomena of being governed. Obedience, moreover, is not always an automatic or unconscious thing. It is a submission of the will—an acquiescence which is either the product of choice, of necessity, or of habit. This has been observed from the first; was observed by Bodin, from whom we get our word sovereignty, and much of our conception of the thing, sovereignty. He perceived that the supremacy of the sovereign—even of the mediæval French sovereign before his eyes—was in fact limited, the frontiers of sovereignty being marked by certain antecedent rights, by divers established prerogatives of property and vested privilege—not a scientific, but a natural frontier, lying along the old mountains ofhabit, the well-known rivers of precedent.
We know that the history of politics has been the history of liberty; a history of the enlargement of the sphere of independent individual action at the expense of the sphere of dictatorial authority. It has revealed a process of differentiation. Certain freedoms of opinion and utterance, of choice of occupation and of allegiance, of fair trial and equitable condemnation, have been blocked out as inviolable territories, lying quite beyond the jurisdiction of political sovereignty. Beginning with that singular and interesting order of the classical states of the ancient world, under which the individual was merged in the community and liberty became identical with a share in the exercise of the public power, we witness something like a gradual disintegration, a resolution of the State into its constituent elements, until at length those who govern and those who are governed are no longer one and the same, but stand face to face treating with one another, agreeing upon terms of command and obedience, as at Runnymede. Conditions of submissionhave been contested, and, as liberty has gained upon authority, have been jealously formulated. The procedure and the prerogatives of authority have been agreed upon; liberty has encroached upon sovereignty and set bounds to it. The process is old; only some of its results are new. What both political philosophers and political revolutionists have sought for time out of mind has been a final definition for that part of the Austinian conception which concerns thehabitual obedienceof the community. These definitions, in their practical shape as institutions, we now call constitutions. At last peoples have become conscious of their relations to the highest powers of the State, and have sought to give permanence and certainty to those relations by setting the conditions of their subordination fast in stubborn practices or in the solemn covenants of written documents. A constitution government has always had; but not until this latest age these deliberate formulations of principle and practice which determine the whole organization and action of the State, the domain of authority, the neutral territoryof liberty, the postulates of obedience.
Constitutions are definitive rather than creative. They sum up experiences. They register consents. Assuredly Mr. Spencer is right when he declares that that which in every country, under whatever system governed, “produces the obedience making political action possible, is the accumulated and organized sentiment of the community towards inherited institutions,” and that “the feeling of the community is the sole source of political power.” But this does not mean what Judge Jameson reads into it, that sovereignty and the feeling of the community are one and the same thing; that the conditions of sovereignty and the exercise of sovereignty are identical. Sovereignty has at all times and under all systems of government been dependent upon the temper and disposition of the people. The will of the community, the inclinations and desires of the body politic as a whole, are always, in the last analysis, the foundation, as they are also in many instances the direct and immediate source, of law. But these preferences of the general bodyare exercised by way of approval or disapproval, acquiescence or resistance; they are not agencies of initial choice. The sanctioning judgments of a people are passive, dormant, waiting to have things put to them, unable themselves to suggest anything, because without organs of utterance or suggestion. I cannot predicate sovereignty of my physical parts, but must ascribe it to my will, notwithstanding the fact that my physical parts must assent to the purposes of my will, and that my will is dependent upon their obedience. The organism unquestionably dominates the organs; but there are organs, nevertheless, organs of origination, which direct and rule with a sovereign presidency.
A written constitution adopted by popular vote affords, perhaps, some of the nicest tests of theory. Here we have the most specific form of popular assent. In such a document the powers of the government are explicitly set forth and specifically lodged; and the means by which they may be differently constituted or bestowed are definitively determined. Now we know that these documents are theresult of experience, the outcome of a contest of forces, the fruits of struggle. Nations have taken knowledge of despotism. They have seen authority abused and have refused to submit; have perceived justice to be arbitrary and hidden away in secret tribunals, and have insisted that it be made uniform and open; have seen ministers chosen from among favorites, and have demanded that they be taken from among representatives of the people; have found legislation regardful of classes, and have clamored to have laws made by men selected without regard to class; have felt obedience irksome because government was disordered in form and confused in respect of responsibility, and have insisted that responsibility be fixed and forms of order and publicity observed. Sometimes only a steady practice has accomplished all this; sometimes documentary securities have been demanded. These documentary securities are written constitutions.
It is easy, as it is also impressive, to believe that a written constitution proceeds from the people, and constitutes their sovereign behest concerning government.But of course it does not. It proceeds always either from some ordinary or from some extraordinary organ of the state; its provisions are the fruit of the debated determinations of a comparatively small deliberative body, acting usually under some form of legal commission. It is accepted as a whole and without discrimination by the diffused, undeliberative body of voters.
What confuses our view is the fact that these formal documentary statements of the kinds and degrees of obedience to which the people assent, the methods of power to which they submit, the sort of responsibility upon which they insist, have become, from the very necessity of their nature, a distinct and superior sort of precise and positive law. We seek the sovereign who utters them. But they are not the utterances of a sovereign. They are the covenants of a community. Time out of mind communities have made covenants with their sovereigns. When despotism in France was ‘tempered by epigram,’ the sharp tongues of the wits spoke, after a sort, the constitution of the country,—a positive law whose sanctionwas ridicule. But the wits were not sovereign; thesalonsdid not conduct government. Our written constitutions are only very formal statements of the standards to which the people, upon whom government depends for support, will hold those who exercise the sovereign power.
I do not, of course, deny the power of the people. Ultimately they condition the action of those who govern; and it is salutary that it should be so. It is wise also, if it be not indispensable, that the extent and manner of their control should be explicitly set forth and definitively agreed upon in documents of unmistakable tenor. I say simply that such control is no new thing. It is only the precise formulation of it that is new.
If it seem to be after all a question of words, a little closer scrutiny will disclose the fact that it is much more than that. Mr. Ritchie, of Oxford University, in an able article on “The Conception of Sovereignty,” contributed to theAnnals of the American Academy of Political and Social Science(January, 1891), perceiving some part of the distinction that I have pointedout, and wishing to realize it in his thought, proposes to distinguish three several kinds of sovereigns: viz. a nominal sovereign—the English queen, for example; a legal sovereign—the law-making body; and a political sovereign—the voters, whom we might call the sovereign of appeal. But why not confine ourselves to substantives, if we may, and avoid the quicksands of adjectives? Sovereignty is something quite definite; so also is power; so also is control. Sovereignty is the highest political power in the state, lodged in active organs, for the purposes of governing. Sovereign power is a positive thing; control a negative thing. Power belongs to government, is lodged in organs of initiative; control belongs to the community, is lodged with the voters. To call these two things by the same name is simply to impoverish language by making one word serve for a variety of meanings.
It is never easy to point out in our complex modern governments the exact organs in which sovereignty is lodged. On the whole, however, it is always safe to ascribe sovereignty to the highestoriginative or law-making body of the state,—the body by whose determinations both the tasks to be carried out by the Administration and the rules to be applied by the courts are fixed and warranted. Even where the courts utter authoritative interpretations of what we call the fundamental law—the law that is embodied in constitutions—they are rather the organs through which the limitations of sovereignty are determined than organs of sovereignty itself. They declare the principles of that higher, constituent law which is set above sovereignty, which expresses the restrictions set about the exercise of sovereign authority. Such restrictions exist in all states, but they are given definite formulation only in some. As for the Executive, that is the agent, not the organ, of sovereignty.
But, even if it be comparatively easy thus to fix upon the organs of sovereignty in a unitary state, what shall we say of a federal state? How apply our analysis to that? One is tempted to declare, with Dr. Merkel, of Strassburg, that federal states give direct contradiction of fact to prevailing theories respecting the necessityfor unity of power, indivisibility of sovereignty. Here, as he says, we have organs and authorities in possession of powers exclusively their own, for the furtherance of functions necessary to the ends of the state as a whole, existing side by side with organs also in full possession of powers exclusively their own, for the furtherance of the local and special functions of the member states. We know, moreover, that these two sets of organs are in fact co-ordinate; that the powers of the states were not derived from the federal authority, were even antecedent to the powers of the federal government, and historically quite independent of them. And yet no one who ponders either the life or the formal structure of a federal state can fail to perceive that there is, after all, an essential unity in it, the virtual creation of a central sovereignty. The constituent act—the manner in which the government was created—can, I conceive, have nothing to do with our analysis in this matter. The way in which the federal state came into existence is immaterial to the question of sovereignty within it after it has been created. Originativelife and action, the characteristic attributes of sovereignty, come after that. Character and choice are postponed to birth, sovereignty to the creation of the body politic. The constituent act creates a thing capable of exercising sovereignty. After the creative law has done its part, by whatever process, then the functions of independent life begin. Thereafter, in all federal states, even the amendment of the fundamental law becomes an organic act, depending, practically without exception, upon the initiative of the chief originative organ of the federal state. Confederations are here out of the question. They are, of course, associations of sovereigns. In the federal state self-determination with respect to their law as a whole has been lost by the member states. They cannot extend, they cannot even determine, their own powers conclusively without appeal to the federal authorities. They are unquestionably subject to a political superior. They are fused, subordinated, dominated. Though they do not exercise their powers by virtue of delegation, though their powers are indeed inherent and in a very importantsense independent, they are yet inferior to a body whose own powers are in reality self-determined, however much that self-determination may be hedged about and clogged by the forms of the fundamental federal law. They are still states, because their powers are original and inherent, not derivative; because their political rights are not also legal duties; and because they can apply to their commands the full imperative sanctions of law. But their sphere is limited by the presiding and sovereign powers of a state superordinated to them, the extent of whose authority is determined, under constitutional forms and guarantees, by itself. They have dominion; but it has sovereignty. For with the federal state lie the highest powers of originative legal determination, the ultimate authority to warrant change and sanction jurisdiction.
Our thought is embarrassed throughout such an analysis by the very fact which invalidates the Austinian conception and makes a fresh analysis necessary. Very little law literally originates in command, though its formulation and enforcement must unquestionably be effectedthrough the commanding authorities of the state. It is their function to direct, to lead, rather than to command. They originate forms, but they do not discover principles. In a very profound sense law proceeds from the community. It is the result of its undeliberate as well as of its deliberate developments, of its struggles, class against class, interest against interest, and of its compromises and adjustments of opinion. It follows, slowly, its ethical judgments, more promptly its material necessities. But law issues thus from the body of the community only in vague and inchoate form. It must be taken out of the sphere of voluntary and uncertain action and made precise and invariable. It becomes positive law by receiving definition and being backed by an active and recognized power within the state. The sovereign organ of a state is, therefore, very properly said to be its law-makingorgan. It transmutes selected tendencies into stiff and urgent rules. It exercises a sovereign choice in so doing. It determines which tendencies shall be accepted, which checked and denied efficacy. It forms the purposesof the state, avoiding revolution if it form them wisely and with a true insight. This is sovereignty:—to sit at the helm and steer, marking out such free courses for the stanch craft as wind and weather will permit. This is the only sort of sovereignty that can be exercised in human affairs. But the pilot is sovereign, and not the weather.