University of Virginia Library

SOVEREIGNTY.

It has hitherto been understood, that the supreme power,
that is, the sovereignty of the people of the States, was in its
nature divisible, and was in fact divided, according to the

Constitution of the U. States, between the States in their
united and the States in their individual capacities that as the
States, in their highest sov. char., were competent to surrender
the whole sovereignty and form themselves into a consolidated
State, so they might surrender a part & retain, as they have
done, the other part, forming a mixed Govt. with a division of
its attributes as marked out in the Constitution.

Of late, another doctrine has occurred, which supposes that
sovereignty is in its nature indivisible; that the societies denominated
States, in forming the constitutional compact of
the U. States, acted as indivisible sovereignties, and consequently,
that the sovereignty of each remains as absolute
and entire as it was then, or could be at any time.

This discord of opinions arises from a propensity in many
to prefer the use of theoretical guides and technical language
to the division and depositories of pol. power, as laid down
in the constl. charter, which expressly assigns certain powers
of Govt. which are the attributes of sovereigty. of the U. S.,
and even declares a practical supremacy of them over the
powers reserved to the States; a supremacy essentially involving
that of exposition as well as of execution; for a law
could not be supreme in one depository of power if the final
exposition of it belonged to another.

In settling the question between these rival claims of power,
it is proper to keep in mind that all power in just & free
Govts. is derived from compact, that when the parties to the
compact are competent to make it, and when the compact
creates a Govt., and arms it not only with a moral power, but
the physical means of executing it, it is immaterial by what
name it is called. Its real character is to be decided by the
compact itself; by the nature and extent of the powers it
specifies, and the obligations imposed on the parties to it.

As a ground of compromise let then, the advocates of State
rights acknowledge this rule of measuring the Federal share of
sovereign power under the const. compact; and let it be
conceded, on the other hand, that the States are not deprived

by it of that corporate existence and political unity which wd.
in the event of a dissolution, voluntary or violent, of the
Constn. replace them in the condition of separate communities,
that being the condition in which they entered into the
compact.

At the period of our Revoln. it was supposed by some that
it dissolved the social compact within the Colonies, and produced
a state of nature which required a naturalization of
those who had not participated in the revoln. The question
was brought before Cong. at its first session by Dr. Ramsay,
who contested the election of Wm. Smith; who, though born
in S. C., had been absent at the date of Independence. The
decision was, that his birth in the Colony made him a member
of the society in its new as well as its original state.

To go to the bottom of the subject, let us consult the Theory
which contemplates a certain number of individuals as meeting
and agreeing to form one political society, in order that the
rights the safety & the interest of each may be under the safeguard
of the whole.

The first supposition is, that each individual being previously
independent of the others, the compact which is to
make them one society must result from the free consent of
every individual.

But as the objects in view could not be attained, if every
measure conducive to them required the consent of every
member of the society, the theory further supposes, either
that it was a part of the original compact, that the will of the
majority was to be deemed the will of the whole, or that this
was a law of nature, resulting from the nature of political
society itself, the offspring of the natural wants of man.

Whatever be the hypothesis of the origin of the lex majoris
partis, it is evident that it operates as a plenary substitute
of the will of the majority of the society for the will of the
whole society; and that the sovereignty of the society as vested
in & exercisable by the majority, may do anything that could be
rightfully done by the unanimous concurrence of the members;

the reserved rights of individuals (of conscience for example)
in becoming parties to the original compact being beyond the
legitimate reach of sovereignty, wherever vested or however
viewed.

The question then presents itself, how far the will of a majority
of the society, by virtue of its identity with the will of the
society, can divide, modify, or dispose of the sovereignty of the
society; and quitting the theoretic guide, a more satisfactory
one will perhaps be found—1, In what a majority of a society
has done, and been universally regarded as having had a right
to do; 2, What it is universally admitted that a majority by
virtue of its sovereignty might do, if it chose to do.

1. The majority has not only naturalized, admitted into
social compact again, but has divided the sovereignty of the
society by actually dividing the society itself into distinct societies
equally sovereign. Of this operation we have before
us examples in the separation of Kentucky from Virginia and
of Maine from Massachusetts; events wch. were never supposed
to require a unanimous consent of the individuals concerned.

In the case of naturalization a new member is added to the
social compact, not only without a unanimous consent of the
members, but by a majority of the governing body, deriving its
powers from a majority of the individual parties to the social
compact.

2. As, in those cases just mentioned, one sovereignty was
divided into two by dividing one State into two States; so it
will not be denied that two States equally sovereign might be
incorporated into one by the voluntary & joint act of majorities
only in each. The Constitution of the U. S. has itself
provided for such a contingency. And if two States, could
thus incorporate themselves into one by a mutual surrender of
the entire sovereignty of each; why might not a partial incorporation,
by a partial surrender of sovereignty, be equally
practicable if equally eligible. And if this could be done by
two States, why not by twenty or more.

A division of sovereignty is in fact illustrated by the

exchange of sovereign rights often involved in Treaties between
Independent Nations, and still more in the several
confederacies which have existed, and particularly in that
which preceded the present Constitution of the United States.

Certain it is that the constitutional compact of the U. S.
has allotted the supreme power of Govt. partly to the United
States by special grants, partly to the individual States by
general reservations; and if sovereignty be in its nature
divisible, the true question to be decided is, whether the
allotment has been made by the competent authority, and
this question is answered by the fact that it was an act of the
majority of the people in each State in their highest sovereign
capacity, equipollent to a unanimous act of the people composing
the State in that capacity.

It is so difficult to argue intelligibly concerning the compound
system of Govt. in the U. S. without admitting the
divisibility of sovereignty, that the idea of sovereignty,
as divided between the Union and the members composing
the Union, forces itself into the view, and even into
the language of those most strenuously contending for the
unity & indivisibility of the moral being created by the
social compact. "For security agst. oppression from abroad
we look to the sovereign power of the U. S. to be exerted
according to the compact of union; for security agst. oppression
from within, or domestic oppression, we look to the
sovereign power of the State. Now all sovereigns are equal;
the sovereignty of the State is equal to that of the Union, for
the sovereignty of each is but a moral person. That of the
State and that of the Union are each a moral person, and in
that respect precisely equal." These are the words in a
speech which, more than any other, has analyzed & elaborated
this particular subject, and they express the view of it finally
taken by the speaker, notwithstanding the previous one in
which he says, "the States, whilst the Constitution of the U.
S. was forming, were not even shorn of any of their sovereign
power by that process,"

That a sovereignty would be lost & converted into a
vassalage, if subjected to a foreign sovereignty over which it
had no controul, and in which it had no participation, is clear &
certain, but far otherwise is a surrender of portions of sovereignty
by compacts among sovereign communities making
the surrenders equal & reciprocal & of course giving to each
as much as is taken from it.

Of all free Govts. compact is the basis & the essence, and
it is fortunate that the powers of Govt. supreme as well as
subordinate can be so moulded & distributed, so compounded
and divided by those on whom they are to operate as will
be most suitable to their conditions, will best guard their
freedom, and best provide for their safety.