Part 2 — CHAPTER VIII.

Sovereignty.

I think it has already been demonstrated that, in this country, the only political community—the only independent corporate unit through which the people can exercise their sovereignty, is the State. Minor communities—as those of counties, cities, and towns—are merely fractional subdivisions of the State; and these do not affect the evidence that there was not such a political community as the "people of the United States in the aggregate."

That the States were severally sovereign and independent when they were united under the Articles of Confederation, is distinctly asserted in those articles, and is admitted even by the extreme partisans of consolidation. Of right, they are still sovereign, unless they have surrendered or been divested of their sovereignty; and those who deny the proposition have been vainly called upon to point out the process by which they have divested themselves, or have been divested of it, otherwise than by usurpation.

Since Webster spoke and Story wrote upon the subject, however, the sovereignty of the States has been vehemently denied, or explained away as only a partial, imperfect, mutilated sovereignty. Paradoxical theories of "divided sovereignty" and "delegated sovereignty" have arisen, to create that "confusion of ideas" and engender those "mischievous and unfounded conclusions," of which Judge Story speaks. Confounding the sovereign authority of the people with the delegated powers conferred by them upon their governments, we hear of a Government of the United States "sovereign within its sphere," and of State governments "sovereign in their sphere"; of the surrender by the States of part of their sovereignty to the United States, and the like. Now, if there be any one great principle pervading the Federal Constitution, the State Constitutions, the writings of the fathers, the whole American system, as clearly as the sunlight pervades the solar system, it is that no government is sovereign—that all governments derive their powers from the people, and exercise them in subjection to the will of the people—not a will expressed in any irregular, lawless, tumultuary manner, but the will of the organized political community, expressed through authorized and legitimate channels. The founders of the American republics never conferred, nor intended to confer, sovereignty upon either their State or Federal Governments.

If, then, the people of the States, in forming a Federal Union, surrendered—or, to use Burlamaqui's term, transferred—or if they meant to surrender or transfer—part of their sovereignty, to whom was the transfer made? Not to "the people of the United States in the aggregate"; for there was no such people in existence, and they did not create or constitute such a people by merger of themselves. Not to the Federal Government; for they disclaimed, as a fundamental principle, the sovereignty of any government. There was no such surrender, no such transfer, in whole or in part, expressed or implied. They retained, and intended to retain, their sovereignty in its integrity—undivided and indivisible.

If this be true, "the men of those days" had a very extraordinary way of expressing their conviction that the word "had no meaning for us." We have seen that, in the very front of their Articles of Confederation, they set forth the conspicuous declaration that each State retained "its sovereignty, freedom, and independence."

Massachusetts—the State, I believe, of Mr. Motley's nativity and citizenship—in her original Constitution, drawn up by "men of those days," made this declaration:

"The people inhabiting the territory formerly called the Province of Massachusetts Bay do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or State, by the name of The Commonwealth of Massachusetts."

New Hampshire, in her Constitution, as revised in 1792, had identically the same declaration, except as regards the name of the State and the word "State" instead of "Commonwealth."

Alexander Hamilton—another contemporary authority, no less illustrious—says, in the "Federalist":

In the same paragraph he uses these terms, "sovereign" and "sovereignty," repeatedly—always with reference to the States, respectively and severally.

There was scarcely a statesman of that period who did not leave on record expressions of the same sort. But why multiply citations? It is very evident that the "men of those days" entertained very different views of sovereignty from those set forth by the "new lights" of our day. Far from considering it a term of feudal origin, "purely inapplicable to the American system," they seem to have regarded it as a very vital principle in that system, and of necessity belonging to the several States—and I do not find a single instance in which they applied it to any political organization, except the States.

In another part of the same chapter he gives a lucid statement of the nature of a confederate republic, such as ours was designed to be. He says: