Law and Political Fact in the United States

Under the shell there was an animal, and behind the document there was a man.”
– Taine.

I. Law.

To say that the United States have produced a great many lawyers, but very few politicians, is to utter what to most minds will seem a startling paradox. And, taking the word “politicians” in its ordinary, every-day sense, the paradox will be real as well as seeming. Not so, however, if by this word is understood masters in the science of politics. In this sense, politicians among us have been, as stated, extremely few; but two or three at the utmost. Many of our public and literary men have, it is true, published treatises on the government of the United States, American institutions, etc., but in these treatises they have uniformly considered everything from the lawyers standpoint; have construed the facts of history as facts under law, and as, from the nature of things here, necessarily under law. What these writers understand by the term “law,” as they employ it, is a rule of conduct prescribed by the people as such unto the people. The idea of law as a rule of conduct prescribed to the people by some determinate, political superior they put altogether aside. They find endless satisfaction, therefore, in the use and repetition of such expressions as “self-government,” “political equality,” the “supremacy of law,” etc.1

For all of this there exists an explanation, and that quite clear and satisfactory. The United States as such came into being as a protest against the unjust and oppressive acts of a determinate, political superior, to wit, the Parliament of Great Britain. They came into being, moreover, at a time when the idea of a determinate, political superior as the real source of law in a state was, on the continent of Europe, passing somewhat into ill-repute; when, indeed, in France, the abolition of all political authority was deemed a consummation of the not distant future; when the words “liberty,” “equality,” “fraternity,” were on everybody’s lips. In setting about a political organization among themselves, therefore, the American States, through their representatives, resolved upon attempting one in which the objection of a determinate, political superior should be obviated; in which the ruled should be also and as such the rulers; in which law, as set forth in a fundamental charter or written constitution, should—the antithesis of ruled and ruler having been done away with—be of itself supreme.

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Says Mr. J. C. Hurd, alluding to the views of these representatives of the States—the “venerable founders” of our government—concerning their work when completed: “They believed, or rather imagined that they believed, that they had got rid of the relation of sovereign and subject for themselves and for us; that abstract justice was quite enough to serve all their political uses and ours, and that the eternal antagonisms, law and consent, were thereafter to form a state to be like a perpetual-motion machine, going on forever, without expenditure of force, without the effort of personal will supported by force; and that writing fairly engrossed upon parchment, tagged with a lump of seal-wax, and called the Constitution, would govern, in spite of their wills, those by whose wills it was to continue as law.”

The groundwork of principles upon which both the views and conduct of these same representatives and founders were based is tersely yet comprehensively set forth in the Declaration of Independence, thus: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; … that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government,” etc. Reared under the influence of ideas such as these, — ideas which have become traditional with the masses of our people, and against which it is therefore political heresy in no slight degree to contend, — it is certainly evident why publicists in the United States have never thoroughly inquired as to the existence here of a determinate, political superior by virtue of which law itself exists, but have accepted unquestioningly the dogma of law, supreme, all comprehending, and operating proprio vigore.

That there is in this no misstatement of the attitude of the public mind in the United States I shall endeavor to show by citations from public documents, the deliberately expressed opinions of the United States Supreme Court, representative lawyers, statesmen, and publicists.

First, by citations from public documents.

Of these, the one first naturally suggested is the Declaration of Independence, a pertinent extract from which has already been given.

Passing next to the Constitution, Article X., we read: “The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.” In the form of this declaration is revealed the currency of the belief in the possibility of a sovereignty under law and existing by virtue of it.

Says the constitution of the State of Massachusetts: “The legislative department shall never exercise the executive or judicial powers or either of them; the executive shall never exercise the legislative or judicial powers or either of them; the judicial shall never exercise the legislative or executive powers or either of them: to the end that it may be a government of laws, and not of men.” Here also, and even more pointedly, is announced the belief in law as the possible supreme factor in government, the regulator of sovereignty.

Again, the United States Revised Statutes, section 1756, prescribe an oath for a person taking office: that he will “support and defend the Constitution of the United States against all enemies, foreign and domestic, and will bear true faith and allegiance to the same;” and, on being naturalized a citizen of the United States, the foreigner is sworn to “support the Constitution of the United States, and renounce allegiance to every foreign prince, potentate, state, or sovereignty.” In these requirements of an oath of allegiance and fealty to the Constitution, the idea of that instrument as a self-existent entity and power is carried to its furthest limit.

But let us pass to our next line of citations.

Mr. Justice Wilson, of the United States Supreme Court, says in the famous case of Chisholm vs. Georgia, decided in 1793: “Let a State be considered as subordinate to the people; but let everything else be subordinate to the State.” “The only reason, I believe, why a free man is bound by human laws is that he binds himself.” “In one sense, the term sovereign has for its correlative subject. In this sense, the term can receive no application; for it has no object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects.” “The principle [announced by Blackstone] is that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it at present to say that another principle, very different in its nature and operations, forms in my judgment the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the consent of those whose obedience they require.”

Mr. Chief Justice Jay, of the same court, says in the same case: “Every state constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves, as to general objects, in a certain manner.” “It will be sufficient to observe briefly that the sovereigns in Europe, and particularly in England, exist on feudal principles. That system considers the prince as the sovereign, and the people as his subjects. … No such ideas obtain here: at the Revolution the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow-citizens and as joint tenants in the sovereignty.” “I wish the state of society was so far improved, and the science of government advanced to such a degree of perfection, as that the whole nation could in the peaceable course of law be compelled to do justice and be sued by individual citizens.”

Views substantially identical with the above are to be found expressed by Mr. Justice Story and Mr. Justice Johnson in Martin vs. Hunter, decided in 1816, and by Mr. Chief Justice Marshall in Cohens vs. Virginia, decided in 1821. Says Mr. Justice Johnson: “Force which acts upon the physical powers of man, or judicial process which addresses itself to his moral principles or his fears, are the only means to which governments can resort in the exercise of their authority. The former is happily unknown to the genius of our Constitution except as far as it shall be sanctioned by the latter.”

Mr. Chief Justice Marshall affirms: “A constitution is framed for ages to come, and is designed to approach immortality as nearly as mortality can approach it. Its course cannot always be tranquil. It is exposed to storms and tempest, and its framers must have been unwise statesmen indeed if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it is sure to encounter.” “‘As far as its nature will permit’ is an unfortunate qualification,” remarks Mr. J. C. Hurd, “in a theory which elevates constitutions into the rank of sentient existences.”

Coming to a more recent time, we find the judges of our highest national court reiterating the declarations of their predecessors in office. Thus Mr. Chief Justice Chase, in the case of Texas vs. White, decided in 1868, speaks of each of the United States as “a political community … established by the consent of the governed.” Elsewhere in the same case, he observes: “The preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible States.” In this statement, the sovereignty in the United States, wherever located and whether divided or a unit, is treated, it will be noticed, as a sovereignty under law.

The following is asserted by Mr. Justice Strong in the legal-tender cases, decided in 1870: “This was the origin of the amendments [that is, the first ten amendments to the Federal Constitution], and they are significant. They tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it neither expressly specified nor deducible from any one specified power or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted.” “Some powers that usually belong to sovereignties were extinguished, but their extinguishment was not left to inference. In most cases, if not in all, when it was intended that governmental powers commonly acknowledged as such should cease to exist, both in the States and in the federal government, it was expressly denied to both, as well to the United States as to the individual States.” “The Constitution was intended to frame a government, … a government supreme in some particulars over States and people.” Here again is made prominent the idea of sovereignty under law, — of sovereignty dependent on and existing by virtue of a constitution, a charter.

The same idea is emphasized by Mr. Chief Justice Waite in Lamar vs. Browne, decided in 1875. He says: “It is quite true that the United States, during the late war, occupied a peculiar position. They were, to borrow the language of one of the counsel for the plaintiff, ‘both belligerent and constitutional sovereign;’” that is, sovereign by virtue of the Constitution.

Again, in the United States vs. Cruikshank, decided in 1875, the doctrine of the Declaration of Independence, of government by consent, is reasserted by the chief justice. But citations enough from the opinions of the United States Supreme Court have been given to show clearly the settled attitude of the court on the point under consideration.

Let us turn, therefore, to the opinions of representative lawyers.

The editor of the Boston Monthly Law Reporter, writing in 1864, declares: “The people are by our Constitution clothed with the power of self-government; it is their franchise. If this franchise, this right of governing, belonged to a single person called a prince or duke, and he had rebelled against his suzerain, can there be any doubt that he would have forfeited to his superior his franchise, his right of government? … The people here stand in the place of the duke, and shall they not [if they rebel] forfeit their franchise, their right to govern themselves?”

In the above is illustrated, first, the idea of the Constitution as a self-existent entity and power, clothing the people with a certain right; and, second, that of government by consent, self-government. The counterpart of the suzerain alluded to is clearly the Constitution.

As showing the firm grasp which the idea of law per se has upon the American mind, and as well, at the same time, the failure of that mind to appreciate the possibility of occurrences on American soil wholly outside of and above law, — revolutionizing, perchance, the very source of law, — may be cited the following from Judge Isaac S. Redfield: “The results of the war [of the Rebellion], then, may be not inaptly considered under the figure of a judgment in an action in a court of justice; for such, in fact, is war more than anything else; … and it must follow as a result of this that war has conclusively demonstrated that secession is rebellion and treason,” etc.

Said Mr. Reverdy Johnson in the debate in the Senate on the ratification of the Fourteenth Amendment: “When will the Constitution be amended by the ratification of three fourths of the States that are represented? Who is to decide that? … If, in point of law, the States that are now represented are the States to whom is to be referred the constitutional amendment proposed by Congress, then the Constitution of the United States will be altered in that respect; but if it is to be submitted to more than the States that are represented in Congress, that is to say to all the States, the question will be open, whether Congress declares it or not, and that is a question of constitutional law which Congress cannot decide by any declaration. It may go for what it is worth that in the opinion of Congress (if that should be the action of Congress) the Constitution may be amended by the ratification of three fourths of the represented States; but whenever the question arises before the judiciary, it will be governed by other considerations. It must be governed by what is the meaning of the Constitution in that particular, and be governed by what the courts shall decide is the condition of the States that are not represented.” The idea here again is that of law all comprehending, — an idea which leaves absolutely no place for political action, properly so called, but which would bring sovereignty itself, the creator and maintainer of law, to the bar of law for judgment. Evidently, whether or not three fourths of the States have at any time ratified an amendment to the Constitution is to be settled by the action of the law-making power in recognizing or refusing to recognize the amendment as adopted. “If,” as has well been said, “the Supreme Court could determine at any time after 1861 how many States composed the Union, as matter of law, it might have decided at the beginning whether there were thirteen or a greater or a less number.”

The following from Judge Thomas M. Cooley will conclude the citations from opinions of representative lawyers: “The Declaration of Independence made them [the colonies] sovereign and independent States by altogether abolishing the foreign jurisdiction, and substituting a national government of their own creation.” The elevation of law to a place above sovereignty in the United States, it would seem, then, was a feat performed at a date even earlier than that of the adoption of the Constitution.

Next in order are citations from the views of representative statesmen.

The first to be given is very brief, yet the whole American idea of law is embraced in it. Says Alexander Hamilton in the Federalist, “A law, by the very meaning of the term, includes supremacy.” Here the thought of supremacy, of sovereignty as preceding law and determining it, is completely negatived. Of the two things, law and supremacy, law is treated as the larger; and as including supremacy.

Said Mr. Webster in the reply to Hayne: “If the old Confederation had contained a clause declaring that resolutions of the Congress should be the supreme law of the land, … and that a committee of Congress or any other body created by it should possess judicial powers extending to all cases arising under resolutions of Congress, then the power of ultimate decision would have been vested in Congress under the Confederation, although that Confederation was a compact between States; and for this plain reason, — that it would have been competent to the States, who alone were parties to the compact, to agree who should decide in cases of dispute arising on the construction of the compact. This citation embodies the doctrine of government by consent, of self-government, — the idea of the contrat social applied in the case of states instead of individuals; the fundamental doctrine of the French people at the time of the American Revolution, and at the present day the prevalent doctrine in the United States. It involves the supposition that, by stipulation in writing, sovereigns, be they individual persons or individual states, can surrender their sovereignty, the same to be exercised against themselves by some agent of themselves provided for in the written stipulation, — a supposition hardly less absurd than that of hoisting one’s self by one’s boot-straps. To this supposition, however, is directly attributable the American dogma of law, self-existing, self-acting.

No school of politics in the United States has entirely escaped this idea, not even the extreme state-rights school of Calhoun. This appears from the whole tenor of Mr. Calhoun’s famous speech on the Constitution, delivered in 1833, in reply to Mr. Webster. His argument for nullification is not on the ground that sovereign states cannot surrender their sovereignty to an agent by compact among themselves, but on the ground that by the terms of the Federal Constitution the States of this Union have not done so. That the terms of the Constitution are appealed to is proof of the acceptance of the doctrine of sovereignty created by consent, by stipulation.

Passing to a more recent period, we are able to quote the following from Mr. Garfield: “It should be noticed that the word sovereignty cannot be fitly applied to any government in this country. It is not found in our Constitution. It is a feudal word, born of the despotism of the Middle Ages. … There is no one paramount sovereign in the United States. There is no person here who holds any title or authority whatever except the official authority given him by law.” “The sovereignty of this people was first lodged in the revolutionary Congress, and it continued there until the 1st day of March, 1781, when they lodged it in the Articles of Confederation. … On the 21st day of June, 1788, a new lodgment of this sovereignty of the American people was made. It was then lodged in this Constitution,” etc.

Expressions similar to the above abound in the speeches of American statesmen of the war and reconstruction period, but further citations are not required. It is from publicists, next to the United States Supreme Court, that the most deliberate opinions are to be had concerning the relations of law and sovereignty in this country. The first of these to be taken up is naturally Story, whose Commentaries on the Constitution have ever been a veritable Bible on law and politics to a preponderating class. He says: “The understanding is general, if not universal, that, having been adopted by the majority of the people, the Constitution of the State binds the whole community proprio vigore,” etc. “In general the import is that the people ordain and establish, that is in their sovereign capacity meet and declare, what shall be the fundamental law for the government of themselves and their posterity.” “This (as has been justly observed by the Federalist) results from the very nature of political institutions. A law, by the very meaning of the term, includes supremacy.” One is reminded by the above of the statements of Judges Wilson and Jay in Chisholm vs. Georgia. The same ideas are emphasized, to wit, self-existent law and self-government.

In accordance with the idea of law as self-existent and self-maintaining writes Francis Lieber: “A living common law is, as has been indicated, like a living common language, a living common architecture. It has the principle of its own organic vitality, and of formative as well as assimilative expansion within itself.” “The civil law excels the common law in some respects, but as to … the independence of the law, the principles of self-government, and the supremacy of the law, the common law is incomparably superior.” Here law is not recognized as a rule of action set by a determinate, political superior, but as a natural growth, vital within itself. Law, as defined by Lieber, is what, by one of an opposite school, would be defined as positive morality only.

Says Dr. Theodore Woolsey in his Political Science: “It [the Constitution] creates a state formed by a league,” etc. “As if there were not something higher and greater than the separate States created by the Constitution.” Remarks of a like tenor are to be found throughout the writings of Mr. George T. Curtis, Professor Draper, and others. The climax is capped, however, in a work not composed by an American, but reflecting largely American ideas, — Von Hoist’s Constitutional and Political History of the United States. This work declares: “It was a terrible victory [that of South Carolina in the nullification controversy]; the vanquished have been terribly scourged for the defeat suffered through their sin, and the victors have been shattered to pieces by the result of the accursed victory. But conquered and conquerors brought down punishment upon themselves because they did not understand one thing, or, if they understood it, would not live up to it, — sovereignty can only be a unit, and it must remain a unit, the sovereignty of law.”

II. Political Fact.

During the time that, in France, “Jean Jacques was promulgating his new evangel of a contrat social, explaining the whole mystery of government, and how it is contracted and bargained for to universal satisfaction;” and that, in America, “on Bunker Hill, democracy was announcing in rifle volleys, death-winged, under her star banner, to the tune of Yankee-doodle-doo, that she was born, and, whirlwind-like, would envelop the whole world,” — to borrow two expressive sentences from Mr. Thomas Carlyle, — widely different political ideas were gaining ascendency in England. A Fragment on Government, by Jeremy Bentham, was on the eve of being published. This work resumed the discussion of sovereignty and law at the point where it had been dropped by Hobbes, in the Leviathan. Before quoting from it, however, the following from Hobbes himself will be of advantage: —

“The multitude … united in one person is called a commonwealth, in Latin civitas. This is the generation of that great leviathan, or rather, to speak more reverently, of that mortal god, to which we owe, under the immortal God, our peace and defense. For by this authority, given him by every particular man in the commonwealth, he hath the use of so much power and strength conferred on him that by terror thereof he is enabled to perform the wills of them all to peace at home, and mutual aid against their enemies abroad.” “His power cannot, without his consent, be transferred to another; he cannot forfeit it; he cannot be accused by any of his subjects of injury; he cannot be punished by them; he is judge of what is necessary for peace and judge of doctrines; he is sole legislator and supreme judge of controversies; … to him it belongeth to choose magistrates, counselors, commanders, and all other officers and ministers.” “I define civil law in this manner: Civil law is to every subject those rules which the commonwealth hath commanded him by word, writing, or other sufficient sign of the will to make use of for the distinction of right and wrong; that is to say, of what is contrary and what is not contrary to the rule. … Laws are the rules of just and unjust; nothing being reputed unjust that is not contrary to some law.” “The legislator in all commonwealths is only the sovereign, be he one man, as in a monarchy, or one assembly of men, as in a democracy or aristocracy.” “The sovereign of a commonwealth, be it an assembly or one man, is not subject to the civil laws; for, having power to make and repeal laws, be may when he pleaseth free himself from that subjection by repealing those laws that trouble him, and making of new; and consequently he was free before.” “When long use obtaineth the authority of law, it is not the length of time that maketh the authority, but the will of the sovereign signified by his silence, for silence is sometimes an argument of consent; and it is no longer law than the sovereign shall be silent therein.”

In these passages, manifestly, no countenance or quarter is given the idea of law as a self-existent entity, operating proprio vigore, — a something above sovereignty, limiting and controlling it. On the contrary, law, as here defined, is the command of the sovereign; that is, its essence. The nature of the command, viewed from an ethical standpoint, is not to be taken into consideration. Consequently there is no such thing as an unjust law, in the sense of a law being any the less law because unjust, according to some criterion of morals. To distinguish between law in the political sense and law in the sense of the order of nature, Hobbes employs the qualifying word “positive” as descriptive of the former. Thus early in politico-legal discussion the phrase “positive law” takes on its scientific character.

But to return to Bentham. The Fragment on Government opens with a vigorous polemic against the dogma of the social contract, of sovereignty instituted by consent. Thus, among other passages: “The king, fifty years ago, promised my great-grandfather to govern him according to law. My great-grandfather, fifty years ago, promised the king to obey him according to law. The king just now promised my neighbor to govern him according to law. My neighbor just now promised the king to obey him according to law. Be it so. What are these promises, or all or any of them, to me? To make answer to this question, some other principle, it is manifest, must be resorted to than that of the intrinsic obligation of promises upon those who make them.” “The indestructible prerogatives of mankind have no need to be supported upon the sandy foundation of a fiction.”

Bentham’s own account of political society, therefore, avoids all fictions, all hypotheses as to origin, and looks simply to fact. It is as follows: “When a number of persons (whom we may style subjects) are supposed to be in the habit of paying obedience to a person or an assembly of persons of a known and certain description (whom we may call governor or governors), such persons altogether (subjects and governors) are said to be in a state of political society.” Hence “an act of political obedience is any act done in pursuance of an expression of will on the part of a person governing.” The essential idea here is that of sovereignty and subjection; of law as the expressed will of the sovereign, and so of sovereignty antecedent to and above law.

The popular definition of democracy (popular in Bentham’s day as well as in our own), as the government of all by all, receives at Bentham’s hands this severe treatment: “Now all is a great many; so many that, I much doubt, it will be rather a difficult matter to find these high and mighty personages power enough, — so much as to make a decent figure with. The members of this redoubtable commonwealth will be still worse off, I doubt, in point of subjects, than Trinculo in the play, or than the potentates whom some late navigators found lording it, with might and main, … over a Spanish settlement. There were three members of the government, and they had one subject among them all. Let him [Sir William Blackstone] examine it a little, and it will turn out, I take it, to be precisely that sort of government, and no other, which one can conceive to obtain where there is no government at all. Our author [Blackstone], we may remember, had shrewd doubts about the existence of a state of nature. Grant him his democracy, and it exists in his democracy.”

The American idea of self-government, — that is, of the people in subjection to themselves as mere population, — it will thus be seen, received its reductio ad absurdum almost contemporaneously with its birth.

The most thorough and accomplished expositor of the idea of positive law, however, was Mr. John Austin, whose work, The Province of Jurisprudence Determined, marked an epoch in the science. The following passages contain his definition of sovereignty, his definition of positive law, and his explanation of their relations to each other: —

“The superiority 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 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 society 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 determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent. To that determinate superior the other members of the society are subject, or on that determinate superior the other members of time society are dependent.” “Every positive law, or every law simply and strictly so called, is set by a sovereign person or by a sovereign body of persons to a member or members of the independent political society wherein that person or body is sovereign or supreme. In other words, it is set by a monarch or sovereign number to a person or persons in a state of subjection to its author.” “It follows that the power of a monarch, properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation. For a monarch or sovereign number bound by a legal duty would be subject to a higher or superior sovereign, contrary to time hypothesis involved in the definition of the terms monarch and sovereign number.” “Monarchs and sovereign bodies have attempted to oblige themselves or to oblige the successors to their sovereign powers. But in spite of such attempts, the position that sovereign power is incapable of legal limitation holds without exception.”

Emphasizing the thought that the source of positive law being necessarily supreme politically, it must also be determinate—that is, certain and come-at-able, — Austin points out that while there are laws which emanate from sources not politically supreme, such as rules set by parents to children, masters to servants, etc., there are no laws which emanate from sources that are not determinate. Hence such rules of conduct as the so-called laws of honor and of fashion among individuals and of comity among nations, proceeding as they do from sources uncertain and indeterminate, are not laws at all. They are simply rules of positive morality, rules set by general opinion. Thus: “A law imposed by general opinion may be the cause of a law in the proper acceptation of the term. But the law, properly so called, which is the consequent or effect utterly differs from the so-called law which is the antecedent or cause. The one is an opinion or sentiment of an uncertain body of persons, of a body essentially incapable of joint or corporate conduct. The other is set or established by the positive or negative conduct of a certain individual or aggregate.”

It is in connection with the discussion of positive morality, of rules set by public opinion merely, that Austin defines the meaning of the term “unconstitutional” as applied to an act of the sovereign. “When,” he says, “an act of a sovereign is styled unconstitutional, in that more general sense of the word, what is meant is, I believe, this: that the act is inconsistent with some given principle or maxim; that the given supreme government has expressly adopted the principle, or at least has habitually observed it, and that the principle is conformable to time general opinion and sentiments of the community, which are shocked by the act in question; or that the principle is useful and the act pernicious; or that the principle is approved and the act disliked by time speaker without any reason of which he can give an account. … Now against a monarch properly so called, or against a sovereign body in its collegiate and sovereign capacity, constitutional law, whether expressly adopted by the sovereign or his predecessors or not, is positive morality merely: … consequently, although an act of the sovereign which violates constitutional law may be styled with propriety unconstitutional, it is not an infringement of law simply and strictly so called, and cannot be styled with propriety illegal.”

The following is Austin’s exposition of civil liberty: “Political or civil liberty is the liberty from legal obligation which is left or granted by a sovereign government to any of its own subjects.” This liberty, he says, moreover, has been “erected into an idol amid extolled with extravagant praises by doting and fanatical worshipers. But it is not more worthy of eulogy than the political or legal restraints which are implied by the words πóλις and civitas. The final cause or purpose for which government ought to exist is the furtherance of the common weal to the greatest possible extent. And it must attain this purpose not less by imposing restraints than by conferring rights or liberties. As I shall show hereafter, political or civil liberties rarely exist apart from corresponding legal restraints. … Political liberty is, therefore, fostered by that very political restraint from which the devotees of the idol liberty are so fearfully and blindly averse.” “Every supreme government is free from legal restraints, or (what is the same proposition dressed in a different phrase) every supreme government is legally despotic. The distinction, therefore [between free and despotic governments] cannot mean that some governments are freer from restraints than others ; nor can it mean that the subjects of the governments which are denominated free are protected against their governments by positive law.”

Austin distinguishes broadly two forms of sovereignty as manifested in the world: the sovereign one, or monarch, and the sovereign aggregate, or aristocracy, — the latter being the generic expression for both oligarchy and democracy; an oligarchy existing when the proportion of the sovereign number to the number of the entire community is extremely small, and a democracy when such proportion is large. Several political societies or states, however, either monarchies or aristocracies, may unite together and form either a composite state or a system of confederated states. “In the case of a so-called composite state or supreme federal government,” says Austin, “it will easily be seen that the common or general government is not sovereign or supreme; and also that no one of the several governments is sovereign or supreme, even in the general society of which it is the immediate chief. For if the general government were supreme, each of the several governments considered in that character would be purely subordinate; and if the several governments were severally sovereign, they would not be members of a composite state, although, as I shall show presently, they would form a system of confederated states. The sovereignty of each of the united societies, and also of the larger society arising from the union of all, in fact resides in the united governments as forming one aggregate body; that is to say, as signifying their joint pleasure, or the joint pleasure of a majority of their number, agreeably to the form determined by the federal compact. By that aggregate body the powers of the general government were conferred and determined; and by that aggregate body its powers may be revoked, abridged, or enlarged.” “The supreme government of the United States of America agrees (I believe) with the foregoing general description of a supreme federal government. I believe that the common government, or the government consisting of the Congress and the President of the United States, is merely a subject minister of the United States’ governments. … I believe that the sovereignty of each of the States, and also of the larger state arising from the Federal Union, resides in the States’ governments as forming one aggregate body; meaning by a State’s government, not its ordinary legislature, but the body of its citizens which appoints its ordinary legislature, and which, the Union apart, is properly sovereign therein.” “A system of confederated states cannot be distinguished by any definite mark from a number of independent governments connected by an ordinary alliance. All that can be said is that tile compact is intended to be permanent, and that the ends and purposes of the compact are more numerous and complicated than those of a simple alliance.”

The essential ideas of Austin have received the sanction of the strong names in recent English juridical literature: of Sir Henry Maine, Fitz-James Stephen, and Frederick Pollock. Thus Maine enforces the idea that sovereignty can reside only in a determinate, human superior. “Nor again,” he says, “can sovereignty be said to reside in the entire community, — an error … to which French [and, lie might have added, American] writers on public law seem especially liable. Their meaning may perhaps be that no body of individuals except the entirety of the people ought to be recognized as superior; but a dogma like this is something very different from the statement of a fact, and the truth is that no government corresponding with the description exists in the world. All polities are either monarchies or oligarchies, since even in the most popular women and minors are excluded from political functions.” Fitz-James Stephen says, apropos of supreme power, of sovereignty: “Liberty, from the very nature of things, is dependent upon power, and it is only under the protection of a powerful, well-organized, and intelligent government that any liberty can exist at all.”

In a word, the ideas of Austin and of the whole English school of jurists are that law exists in strict subordination to political fact, — the fact of supreme, despotic power lodged in a determinate, come-at-able, natural person, or in a determinate, come-at-able aggregate of natural persons; that political fact or sovereignty precedes law, creates law, and sustains law.

III. Results.

Let us proceed next to an examination of the effect in the United States, upon thought and action, of the wide rejection here of the idea of political fact, and of the equally wide acceptance of the opposite idea of law, — law above sovereignty.

One very perceptible effect is the opinion countenanced by the language and spirit of the Declaration of Independence, that the only sovereignty in the United States is that of the people as such, as mere unorganized mass. This opinion ignores the palpable political fact in the United States that the American people en masse, the unorganized American people, exercise no political power whatever, neither rule themselves nor anybody else; that the only rulers here are the organized political peoples of the States united, the electors in each State acting together. Each State determines for itself, outside a general restriction as to color, what shall be the qualifications for its electors; and the different bodies of electors so qualified, acting together, exert power, — sovereign power. Never since the adoption of the Federal Constitution (nor before its adoption, for that matter) has the whole American people exercised political power. This is a verifiable fact of history. Yet, in the very face of this fact, we find such a writer as Professor John N. Pomeroy asserting that the people themselves, the entire mass of persons who compose tile community, are the true nation, the final, permanent depositary of all power. “It is certainly unnecessary,” he says, “for Americans to argue in favor of the correctness of this principle. Our whole political structure, our whole civilization, is based upon it.” It is doubtless true that, upon this principle, — the principle of universal sovereignty, — courts, publicists, and statesmen have all along agreed in assuming our whole political structure to be based. But there is the very difficulty, there is the very head and front of our offending. We have laid down a principle, in the Declaration of Independence for example, and then persisted in construing history in the light of it. We have put law before political fact; have assumed that sovereignty, in obedience to our principle, exists in the entire mass of the American people; and then refused to recognize the fact that it does not exist there at all, and never has, but exists in the organized political peoples, the electors of the States united.2

The fact of the existence in the United States, as elsewhere, of a determinate, political superior (consisting here of the electors of the several States acting together) substantiates the opinion of both Austin and Maine that sovereignty nowhere resides in tile entire community, men, women, and children, as a mere unorganized body; and also the opinion of Austin that the sovereignty in the United States is an oligarchy, the States united.

Again, the effect of the acceptance of the idea of law, of law above sovereignty, in the United States is perceptible in the opinion—at variance, in its explicit recognition of the fact of sovereignty, with the opinion just considered and not as widely entertained—that sovereignty is divisible; that it can be cut up and parceled out in accordance with the terms of some plan embodied in a written constitution. It is the common language of the United States Supreme Court that certain powers incident to sovereignty have under our Constitution been reserved to the States, and certain others delegated to the United States. Thus says Mr. Chief Justice Taney, in Ableman vs. Booth: “The powers of the general government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other within their respective spheres.”

Mr. G. T. Curtis has well set forth this idea of the divisibility of sovereignty in his various discourses and writings. His language in one place is: “I have said that the framers of our Constitution reached the conclusion that political sovereignty is divisible; and I regard this central truth, which, in the sense in which it is to be understood, is an American discovery, as the key to all correct interpretation of our political system.” Judge Cooley has expressed himself in similar terms in his Constitutional Limitations.

The political fact, however, is that sovereignty in the United States has never been divided. It has always been exercised by the political peoples of the several States acting together, through the instrumentality of a general government, subdivided into departments, legislative, executive, and judicial. In the language of Mr. J. C. Hurd, “The powers held by the States severally cannot, under any theory of the Constitution, be sovereign in any sense, when the use made of them by the state governments is subject to the judgment of any department of another government holding the other powers of sovereignty.”

Had not the American mind from the start been filled with the idea of sovereignty under law, the dogma of the divisibility of sovereignty, in accordance with the terms of some particular charter of government, would never have gained currency. It would have been seen that everywhere sovereignty is a unit above law and determining law; and the accepted opinion to-day would be that of Hobbes and the English jurists, namely, that “to divide the power of the commonwealth is but to dissolve it.”

Still another effect of the American idea of law is time tendency with us (already alluded to) to lay down some principle or maxim, and then persistently to construe all fact in the light of it. In the Declaration of Independence, for example, the principle is formulated that all government derives its just power from the consent of the governed, the universal sovereignty doctrine; and in consequence, from that time to this, we have busied ourselves in studiously ignoring the fact that universal sovereignty does not exist now, and never has existed, in the United States. Our principle is belied by our conduct, but we reassert it constantly in learned treatise and popular address. Judge Jameson and Professor Pomeroy devote each many pages to its exposition, and the stump orator has worn it literally threadbare.

It is the same with other principles and maxims. Is a so-claimed fundamental truth of democracy announced by Madison or Hamilton in the Federalist, our habit is to endeavor to square the history of the past one hundred years into harmony and conformity therewith, rather than to make that history the test of the genuineness of the so-claimed truth.

It seems to be our idea that so long as the Constitution of the United States receives, in its more obvious respects, the usual application, the sovereignty here must necessarily reside where it resided at the start and be what it then was. This idea is the fruit of the larger and more comprehensive idea that law is above sovereignty, in the United States, and holds the latter in its place. Attention to the opposite idea, that sovereignty is above law and creates law, would suggest the reflection that for the Constitution to receive, in its more obvious respects, the usual application to-day is not necessarily for it to receive that application by the grace of the same sovereign as in former days. The new sovereign, if there be one, may be keeping alive, more or less completely, the laws set by his predecessor. Yet it is none the less important that we find out if there be a new sovereign. His advent may have been revealed to close observers by political straws unnoticed by the people generally, or, if noticed by them, deemed without significance. It is thought by some, by one at least, that the assumption more and more by the Supreme Court of the United States to pass upon political questions, mistaking them for questions of law, is an indication of a shifting of the political centre of gravity here from an oligarchy, consisting of the States united, to a pure democracy, acting through the general government.

But whether this be an opinion well founded or not, one thing is certain, and that is that where the sovereignty in the United States resides to-day, and in what it consists, can be discovered only by examining the facts of history; and that, moreover, in their own light, and not in the light of principles and maxims formulated by the fathers of the Constitution, and dear to our hearts on that account. Political fact, not law, must be our criterion.

Thus far have been considered more especially those effects of the American idea of law which have been exhibited in opinion. Still more startling effects of this idea have been exhibited in conduct.

At the close of the war of the Rebellion in the United States, a number of cases came before the Federal Supreme Court, among them Texas vs. White, White vs. Hart, and Keith vs. Clark, in the decision of which it was necessary to state the condition of the rebellious States, politically, after the passage by them of the ordinance of secession. That condition, according to Austin’s description of the United States as an oligarchy, consisting of States united, — a description in complete accordance with fact, — was manifestly of States which had laid aside their statehood, their political personality, and become territories, geographical expressions: the sovereignty in which they had once participated remaining unimpaired in the non-seceding States, the States continuing in union; it being no more lessened or weakened than would be the sovereignty of aim oligarchy of natural persons by the retirement of a portion of the members, and continuing just as supreme over the territories once States as, in the case of natural persons, it would continue over the persons once oligarchs.

But, instead of so stating the condition of the seceded States in accordance with political fact, the court proceeded to state it in accordance with a fundamental maxim of the American idea of law, namely, that of the divisibility of sovereignty. It was remembered that, from the days of the Constitutional Convention and the Federalist down to the present, the several States, as well as the United States, had been acknowledged possessors of sovereignty in some sense. It would never do to say that, while in secession, the Confederate States were mere territories, mere geographical expressions; for, in that event, they were in no sense sovereign severally. The announcement was accordingly made (and no announcement has been more applauded by the American people) that we were an indestructible Union of indestructible States; that is, a sovereignty composed of sovereignties. In point of sentiment, this proposition met the case very completely. It recognized the actual sovereignty of the Union, and likewise the traditional sovereignty of the States. The radical saw in it a triumph for nationalism, and the conservative a guaranty against such a triumph for nationalism as must result in the absorption of the States. Both were, therefore, satisfied.

In point of logic, however, this proposition did not meet the case at all. One of the admitted consequences of rebellion is treason on the part of somebody; but if the States of the American Union are indestructible as such, individual citizens of a State can rarely be traitors save to that State. The State itself cannot be in rebellion, for so long as it is admitted to be a State it is a political personality, entitled to all political privileges; subject to conquest, but not amenable to criminal law. Indeed, under the proposition that we are an indestructible Union of indestructible States, the possibility of treason to the United States is to a great extent eliminated from our polity.

Again, under this proposition, a State being unable to lay aside its statehood (a contradiction in terms, by the way, for a State such by compulsion is not a State at all), the war of the Rebellion was waged, not against belligerent persons, but against belligerent States, — belligerent political organizations; and the European view of that contest as essentially an international one, a view at which it has been the habit of loyal sympathizers to carp and become highly incensed, is fully sustained.

The Supreme Court, it is hardly necessary to say, has not deemed it expedient to accept the whole of these logical consequences of its famous apothegm concerning the nature of the Union amid the States. It has accepted them in part, and in part—the larger part—not. Its course has been vacillating and contradictory. Indeed, it could not be otherwise, under its fixed determination to interpret the war in the light of sentiment and tradition, instead of in the light of political fact. It is not less than public misfortune that the idea of law is so inwrought in the American consciousness that by jurists, publicists, and statesmen alike the effort is to test history by maxims, not maxims by history.

Other instances of the effect upon conduct of the American idea of law might be given, such as the recognition and partial enforcement by the United States Supreme Court, in the cases of ex parte Siebold and ex parte Clarke, of the doctrine that the general government (the agent) may insure its perpetuity against the desire of the States in union (the principal and sovereign) by compelling them to send representatives to Congress, on the ground that the Constitution, as law above sovereignty, looks to such perpetuity, but space will not permit.

The truth of the remark introductory to this article, that while the United States have produced very many (and, it might have been added, very able) lawyers, they have produced but few politicians in the exalted sense of the word, has already, I think, been demonstrated.

Has it not also been made to appear that, for national self-comprehension and guidance, of politicians, in such sense, we stand sorely in need?