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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 body are 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 the result 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 soyereign 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 sanction was ridicule. But the wits were not sovereign; the salons did 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 the Annals of the American Academy of Political and Social Science (January, 1891), perceiving some part of the distinction that I have pointed out, 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 highest originative 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