208 



and moral responsibility, as Bodin carefully explains : Mit above the muni- 

 cipal ordinances of the particular States — the positive laios, in modern phrase 

 — which it creates and enforces. Find the person or persons whom the 

 constitution of the State permanently vests with such authority, under 

 whatever name, and you have found the sovereign. 'Sovereignty is a 

 power supreme over citizens and subjects, itself not bound by the laws.' 

 This power is somewliere necessary to an independent Stale, and its pres- 

 ence is the test of national independence. Such is in outline the princi- 

 ple of sovereignty as stated by Bodin, taken up a century later by 

 Ilobbes, and adopted by all modern publicists, with more or less varia- 

 tion in the manner of statement." But obviously this argument, lilie 

 that of Austin, rests upon the ambiguity of the term, law, us signifying 

 either lex or jus. 



Whether the argument of Bodin is correctly staled by the author cited, 

 I do not know, but assume that it is. But if so, Bodin is extremely in- 

 consistent ; lor, according to the author, "he teLs us of organic laws or 

 rules which may be so very closely associated with the very nature of this 

 or that sovereignty that thej^ cannot be abrogated by ihe sovereign power 

 itself, and he instances the rule of succession to the French Crown. 

 Again, there are institutions of society, such as the family and property, 

 which he assumes as the foundation of the Stale ; and with these even the 

 sovereign power cannot meddle. From the inviolability of properly he 

 draws the consequence that not the most absolute monarch can tax his 

 subjects without their consent."* 



§ 10. Uidorical Refutation of the Doctrine of Absolute Sovereignty . 



The doctrine of sovereignty is generally expressed in the proposition 

 that the sovereign power, or sovereignty, is unlimited and indivisible. It 

 is not explained by the advocates of the doctiine, whether the proposi- 

 tion refers to the actual or the rightful power of the sovereign ; that is to 

 say, to his might or to his right. But in whatever sense the term is used, 

 the doctrine — as we have seen — is not only without definite significance, 

 or, in other words, nonsense, and the arguments adduced in support of 

 it — even those of the most celebrated philosopliers — a mere tissue of logi- 

 cal absurdities, but it is also inconsistent with the whole history of the 

 European race, whose principal characteristic and fundamental political 

 virtue has been, in sentiment, an abhorrence of unlimited power, and in 

 practice, a determined resistance to it, and, in the long course of whose 

 history, every epoch and place has been a livmg refutation of the doc- 

 trine. 



Here in our own country, according to the unvarying decisions of the 

 Supreme Court of the United States, and of all jurists possessed of even 

 an elementary knowledge of the constitutional law, the sovereign pow- 

 ers are in fact divided between the federal government and the Slates ; 



* History (if the Science of Politics, p. 21. 



