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thing by itself, as if it were an independent being and not merely an indiviuual quality of another being, the state. This mistake forces him to the logical absurdity of ascribing to the part, which can exist only in and with the whole, an unlimited power over the whole. • The chief qualities of sovereignty, as indicated by Bodin, are :
1. The right to prescribe laws to the citizens, collectively and individually, without being obliged to obtain the agreement of a higher or of a lower power. The consent of a senate or of an assembly of the people, or of the classes in the state, may be useful, in a monarchy, but it is not necessary if the monarchial sovereignty is to remain untouched. 2. The right to declare war and to conclude peace. 3. The right to nominate the superior magistrates. 4. Final appellate jurisdiction : if a vassal is injured, that no approach and no appeal is possible from him to a lord paramount,
from the lord, and even to become sovereign. 5. The right to pardon and restore fines. 6. The right to stamp coins. Thus far, in substance, the criticism of Bluntschli. "
That Hobbes (born 1588, died 1679,) was influenced by the views of Bodin is probable, although there appears no positive evi. dence of the fact. He visited France as early as 1610, and again in 1629, and was several years on the Continent at different times later, and mingled freely with the scholars of the French capital. The Leviathan was published in 1651. In this work he postulates a condition of war between individual men as the primitive state, and affirms that in order to protect themselves from one another, and to obtain peace and security, political society was created. “ The only way to erect such a common power," he says, “as may be able to defend them from the invasion of foreigners, and the injuries of one another, and thereby to secure them in such sort as that by their own industry and by the fruits of the earth they may nourish themselves and live contentedly, is to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will ; which is as much as to say to appoint one man, or assembly of men, to bear their person” (“Leviathan," Lond. 1839, p. 157). And again : “A commonwealth is said to be instituted when a multitude of men do agree and covenant, every one with every one, that to whatsoever man, or assembly of men, shall be
given by the major part the right to present the person of them all, that is to say, to be their representative ; every one, as well he that voted for it as he that voted against it, shall authorize all the actions and judgments of that man, or assembly of men, in the same manner as if they were his own, to the end to live peaceably amongst themselves and be protected against other men” (p. 159). Here the idea of the sovereign is clearly presented, and it is de. clared that “there can happen no breach of covenant on the part of the sovereign ” (p. 161). The sovereignty is, moreover, indivisible. “Where there is already erected a sovereign power, there can be no other representative of the same people, but only to certain particular ends, by the sovereign limited. For that were to erect two sovereigns; and every man to have his person represented by two actors, that by opposing one another must needs divide that power which, if men live in peace, is indivisible” (p. 172). The quality of the sovereign's power is not affected by the form of government. “The difference between these three kinds of commonwealth consisteth not in the difference of power, but in the difference of convenience or aptitude to produce the peace and security of the people ; for which end they were instituted ” (p. 173). “Elective kings are not sovereigns, but ministers of the sovereign; nor limited kings sovereigns, but ministers of them that have the sov. ereign power” (p. 178). “The sovereignty, therefore, was always in that assembly which had the right to limit him” (p. 179). (The power to determine its own form of government was, moreover, recognized as a mark of a politically independent and sovereign state. )“ There is no perfect form of government where th, disposing of the succession is not in the present sovereign” (p. 180). Hobbes anticipated the later doctrine that what the sovereign permits it thereby wills. “ For whatsoever custom a man may by a word control, and does not, it is a natural sign that he would have that custom stand” (p. 183).
More than a century later Jeremy Bentham, in A Fragment on Government (published in 1776), propounds the view which his disciple, John Austin, afterwards elaborated. He defines a po. litical society thus: “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 assemblage 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” (“Works " I. 263). In the sixth lecture of The Province of Jurisprudence Determined, Austin has elaborated and supplemented the views of Bentham on sovereignty.
Bluntschli has enumerated in Lehre vom modernen Stat, I. 563, the following attributes of sovereignty :
1. Independence of the political power of all superior political authority. But this independence is to be understood relatively, not absolutely. International law, which unites all states in an arrangement of common rights, is no more in opposition to the sov. ereignty of the state than is constitutional law, which limits the exercise of political power within the territory of the state. Whence it is possible that subordinate states may be regarded as remaining sovereign, although they may have become essentially dependent on the collective state, as, for example, in foreign political and military affairs.
2. Supreme political dignity, what the ancient Romans styled Majestas.
3. Plenitude of political power, as opposed to limited authority. Sovereignty is not a sum of separate individual rights, but a collective political right, a central conception of force similar to that of the conception of property in private law.
4. The sovereign power, moreover, is, from its very nature, the supreme power in the state. There can be, therefore, no other political power in the organism of the state superior to it. The French seigneurs of the middle ages ceased to be sovereign when they were obliged again to subordinate themselves to the king, their feudal lord, in all essential respects of independence and dominion. The German electors have been able to assert their sovereignty in their several territories, since the fourteenth century, for in fact they have possessed in their own right the supreme political power in these territories.
5. Since the state is an organic body, the unity of the sovereign power is a necessity of its welfare. The division of the sovereignty leads, in its consequences, to the paralysis or dissolution of the state, and is, therefore, not compatible with the health of the state.
The general excellence of Holland's Elements of Jurisprudence (Oxford, 1880) entitles the definition of sovereignty there given to our consideation. “Every state," he says, “is divisible into two parts, one of which is sovereign, the other subject.” “The sovereignty of the ruling part has two aspects. It is external,' as independent of all control from without; 'internal,' as paramount over all action within.” “External sovereignty, by possession of which a state is qualified for membership of the family of nations, is enjoyed in the fullest degree only by what is technically known as a ‘Simple State,' i. e., by one which is not bound in a permanent manner to any foreign body.' States which are not simple' are members of a ‘System of States,' and collectively subject to a 'federal government'" (pp. 38, 39)
In his Introduction to the Constitutional Law of the United States, p. 28, Professor J. N. Pomeroy calls attention to the ne. cessity of constantly preserving the distinction between " the nation and the government which that nation has actively created or passively permitted as the agent for the expression of its supreme will." He very properly charges a large part of the confusion of ideas, in this country, concerning the true import of the term “ sovereignty" and“ sovereign" to the long, and in a modified way still continued, discussion of “State rights” and “State sovereignty.") It is more difficult to accept his criticism of Austin's famous sixth lecture, when he claims that in it nations and states are confounded with the ruling apparatus or organs of government within them. In reading this lecture it must always be borne in mind that Austin's primary object was to fix distinctly in the minds of his hearers the idea that a law, in the judicial sense, or, as he styles it, “a positive law,” is a command “set by a sovereign, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme." His leading thought was to define positive law, and, consequently, he concerned himself mainly with making clear the conception of the sovereignty or characteristic marks of the independent political society, and, what was of more importance, with the definition and marks of the sovereign within the independent political body. In other words, he traces distinctly the two objects noted in the above quotation—the “sovereign" and the “independent political society.”
THE ORGANS OF THE SOVEREIGN.
The nation must have organs to express its will in commands or laws, and to enforce the execution of its laws. These organs constitute the government, whose function it is to regulate the relations of the nation with other nations, and to regulate the actions and relations of individual citizens with reference to one another.
Having considered the nation as an organic social being, clothed with absolute power vested in that part of the nation which we call the sovereign, and endowed with a will, we turn now to inquire into the nature and general functions of those means through which the will of the nation is expressed and rendered effective.
The nation thus characterized, considered at any given time, appears composed of men, women and children inhabiting a certain territory. Let us take the United States as an example. Our last census report shows that within our territorial limits there were, in 1880, over fifty millions of persons. If we picture to ourselves this great multitude, we shall see at various points hundreds of thousands crowded into cities; then smaller cities and towns and villages, with the interspaces occupied by families living on farms in varying degrees of proximity. If we could embrace all these persons in a single glance, we should see all, or very nearly all, of the adults engaged in different avocations, and it would be particularly noted that each is, in a degree, only a speci