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Numbers, organization, equipment, and practice in the use of firearms became the measure of strength rather than personal valor and individual muscular development.10
The people of England were long in appreciating the effect of the new destructive and their possession of superior power; but at last, goaded to action by the folly and obstinacy of Charles Stuart, they threw off the yoke of artificial sovereignty, and, by compelling obedience to their will, demonstrated the location of the real sovereignty. Since the execution of Charles I., the English people have known that they were sovereign in England. The revolution of 1688 and the peaceful revolution of 1832 are but cumulative evidence of the fact. The sovereignty of an English king, resting solely upon the will of his so-called subjects, is not real but artificial, a fiction perpetuated by custom, by reverence for the past, and, if you please, by the "habit of obedience" which Hume and Austin have made so prominent. The king, the monarch, cannot by his own might compel obedience; the sovereign people can.
However certain may be the nature of real sovereignty and its presence in a state, it is the artificial which has for the past three hundred years been emphasized in the majority of governmental systems through the passive acquiescence of the real sovereign; and it has been the treatment of the artificial as if it were the real that has weakened many philosophic theories and made them valueless in explaining certain important historical events. It is only in the case of great political or social upheavals in a state, when actual physical force is exercised, that the possessors of the real sovereignty arise in their true character and assert their supremacy. Such momentous events in the world's history, as the rebellion of the Netherlands against Spain, the English revolution of 1688, the American war for independence in 1776, and the French revolution of 1792, are manifestations of the real sovereignty.
10 Maine, in his consideration of how far the facts of human nature and society bear out the Austinian idea regarding sovereignty, says: “The first of them is that, in every independent community, there resides the power of acting with irresistible force on the several members of that community. This may be accepted as an actual fact. If all the members of the community had equal physical strength and were unarmed, the power would be a mere result from the superiority of numbers; but as a matter of fact various causes, of which much the most important have been the superior physical strength and the superior armament of portions of the community, have conferred on numerical minorities the power of applying irresistible pressure to the individuals who make up the community as a whole.” (Maine, p. 357.)
Yet, having demonstrated its superiority and compelled obedience to its will, the real sovereign does not always establish a government consonant with its expressed authority; but, influenced by custom, inclination or expediency it permits an artificial sovereignty to continue though it may materially modify its form and limit its exercise from that which had previously existed. In the case of the revolting English colonies in America this was not so; but in England, after the dethronement of James II., the monarchy with its artificial sovereignty was restored though with restricted powers. The same was true of France after it had passed through a chaotic period, in which the sovereignty was the plaything of mobs, and through the feverish glory of the Napoleonic era. There are features which make the epoch of the French revolution unique in history, particularly the advent of Bonaparte and the influence of his extraordinary personality upon the republicanism and materialism of the French nation; but this is not the place to give to these phenomena the special consideration to which they are entitled. Suffice it to say, that with the final overthrow of Napoleon, the Bourbons were again permitted to assume their artificial sovereignty, and the real sovereignty of the French people became latent. But the spirit of the revolution was not extinguished, and, though it smouldered for a time, it broke forth again and again until the artificial sovereignty of the houses of Bourbon, Orleans, and of Bonaparte was finally consumed in the conflagration of the Paris Commune.
Successful popular revolutions and the suppression of rebellions are the manifestations of the real sovereignty in a state. Both are coercive in character, both compel obedience, and both require the exercise of superior physical strength, including in that term the use of weapons of war, military skill, discipline and equipment.
The actual expression of the real sovereignty occurs, as has been shown, in times of civil turmoil, but it cannot find expression, when domestic peace prevails, through the medium of physical force. The fact that the force is present and that it is supreme within the state is sufficient to cause recognition. Under peaceful conditions the acts performed directly by the real sovereign are limited to the following: (1) The establishment of a government; (2) the delegation of powers to that government; (3) the granting of civil liberty to members of the state; (4) the changing of any provisions relating to the first three subjects; (5) the appointment of governmental agents; and (6) the enactment of certain laws. The three first acts are accomplished by adopting or consenting to a constitution for the state; the fourth, by amending such constitution; the fifth, by election; and the sixth, by the processes known as initiation and referendum.
It makes no difference how a constitution or a constitutional amendment is introduced, its binding force is derived from its positive or passive adoption by the real sovereign. But this binding force only applies to the individuals in the state considered as distinct units. It cannot bind the individuals considered collectively as a single body or that undetermined portion which possesses the superior physical force in the state. That dominant portion is the sovereign, and the sovereign cannot bind itself or be bound. In a Christian state, just and moral principles usually control the majority of individuals in the exercise of the share of the sovereignty, which each possesses as a member of the sovereign body, but only because of the prevalence of religious sentiment and of the consciousness of moral obligation. The body of individuals in a state, in which body resides the real sovereignty, is not restrained in any way, except by the limitations inherent in human nature, in declaring the fundamental law of the state. They may, indeed, if they so will, embody in a constitution provisions which are manifestly unjust and immoral. It is not at all a question of right, but a question of power. Yet there must be no confusion of the right and the power. Might may make law, but might does not make right. The sovereign is supreme, but the sovereign may be unrighteous.
As it is impossible, except when actual physical strife occurs in a state, to determine with certainty who are and who are not the possessors of the real sovereignty, there are certain qualifications which have been assumed in modern states to be evidence of an individual's right to share in the exercise of the sovereignty.
These qualifications are usually based, whether intentionally or not, upon the presumptive physical strength of the individual. They are as follows: First, Sovereign rights are confined to males, because, as has been pointed out, females are physically inferior and therefore powerless to maintain such rights by force. Second, The males are also limited to those who are presumed to have attained full bodily vigor, which is assumed to be when they have reached a certain age. These two requirements rest upon the natural attribute of sovereignty, strength. But property and educational qualifications are purely artificial limitations based upon the desire to restrict the exercise of sovereignty to those who will be influenced by reason, conscience, and patriotism in giving expression to the sovereign authority.
An assumption takes the place of physical demonstration in times of domestic peace, the test for possession of the sovereignty is not physical but must rest upon a fulfilment of the qualifications imposed. Whatever may be the difference between two persons in physical vigor if each meets the requirements laid down for sharing in the sovereignty, they are deemed to be equal in their possessive right in such sovereignty. It is clearly an assumed equality based upon assumed evidences of strength, and in some cases of intellectual ability, but such assumptions are inseparable from the internal peace of a state. Any other method would introduce confusion and conflict, and would, therefore, be irrational since it would bring about a condition hostile to progress and the common weal. Furthermore, this assumed equality is not so artificial as it at first appears, since gunpowder and modern inventions have equalized the martial worth of individuals making the skillful, though weak, superior, man for man, to the unskilled though strong.
The discussion concerning expressions of sovereignty in times of peace and the artificial equality of qualified individuals assumed to be possessors of the sovereignty applies to modern democratic states, whether their governments are monarchic or republican. In such states the peaceful determination of the sovereign will necessarily depend upon the expressed will of the greater number of the assumed possessors of the sovereignty, since unanimity is substantially impossible when the possessors are numbered by thousands or even by hundreds, unless some artificial plan is followed, such as was employed in the Iroquois confederacy. The result is that the rule of majorities is supreme. It is well to fix in the mind these two characteristics which mark the exercise of sovereignty in times of domestic peace, namely, the equality of individuals in possession, and the rule of majorities.
The nature of sovereignty in a single state, whether it be real or artificial, yields readily to analysis, but the more complex type found in a composite state, particularly in a federal state like the United
States, requires careful discrimination between the actual and apparent facts in order to determine the true nature of such sovereignty. The real and the apparent results of historical events must be distinguished and the mind of an American student must be freed from the bias and prejudice which for a half century have influenced writers upon political science in dealing with the institutions of the United States.
It is an accepted principle of the law of nations that every state, whatever may be its population, power and resources, is the political equal of every other state, and that its sovereign is independent and supreme within the state. There is no such thing as degrees of sovereignty among states; the nature of real sovereignty precludes such a thought. Now let this manifest truth be applied to the problem of sovereignty presented in the federal state of the United States.
This condition of independence and equality obtaining among states was recognized in America during the war for independence by each of the thirteen colonies having an equal voting power in the revolutionary government and also in the government established by the articles of confederation; and this equality prevailed irrespective of the great contrast in the territorial extent, wealth, and population of certain of the allied colonies. From this fact alone it may be assumed that during the period from the commencement of the Revolution to the adoption of the Constitution of 1787, each one of the thirteen original states was a distinct, independent political society with a separate sovereign, otherwise this assumed equality would have no theoretical or practical basis.
A federal state or union, originating from the joining together of several independent states, is from its composite nature a political organism, in which the individual units are such states instead of persons. If this statement is correct and the likeness is at all complete, the same general rules which apply to a state composed of persons ought to apply to a federal state composed of states, and the same incidents should be manifested.
It has been shown that the sovereignty in a single state in times of domestic peace is shared equally by a body of qualified individuals, and that the chief sovereign acts are the adoption of a constitution and of constitutional amendments. Applying this test to the American Union, which presents an example of a complex type of federal state, the federal constitution and all amendments to it should, if the simi