319 



sovereignty apparently exercised by the House of Commons is vested, not 

 in tlie House, but in its constituency, {m) 



Tlie view of Bluntsolili that the liing, and that of others, that the House 

 of Commons is the exclusive sovereign, are, therefore, equally untenable. 

 Sovereign power is undoubtedly vested, and, since the Commons became 

 a constituent part of Parliament, has always been vested in each of the 

 three coordinate branches of the government ; as, previously to the event 

 referred to, it was in the king and lords. 



§ 61. Of the Essential Nature of Constitutional Government. 



Bluntschli's doctrine, as to the indivisibility of the sovereignty, is 

 obviously inconsistent with his own theory that it is limited. For, regard- 

 ing sovereignty merely as the supreme, or Jiighest political power, it is 

 clear that, if exclusively vested in the governmental or executive depart- 

 ment of the government, it cannot be limited by the legislative, or the 

 judicial department; for this would be to vest in some respects, a higher 

 power in the latter. The argument of Austin on this point * is conclusive. 

 Hence, all constitutional government must consist of divided sovereign 

 powers ; and this in fact constitutes the essential difference between such 

 governments, and despotic governments ; where the sovereign powers are 

 concentrated in one hand. Hence, the most fatal aspect of Mr. Bluntschli's 

 argument is that, if it be true, constitutional government is impossible ; 

 for the very essence of all constitutional government — it is universally 

 admitted — is that the legislative power, within its province, must be 

 supreme ; and. in this country, it is regarded as equally essential that 

 the judicial power also shall be so. Hence, it may be said that every 

 American State, federal, or constituent, is in fact a triarchy, consisting of 

 three sovereign departments, " existing side by side, each independent of 

 the other ;" each of which may, without much impropriety, be called, 

 with reference to the power vested in it, a sovereign. This state of things 

 is indeed regarded by Mr. Bluntschli as impossible, at least as a permanent 

 institution ;f but so far is this from being the case, that such division of 

 powers is, in our own case, universally regarded as the surest foundation 

 of permanency. And, it may be added, that some such division of 

 sovereignty is an essential and necessary condition of permanency in all 

 States whose people are capable of vindicating their rights ; for no free 

 people will willingly submit to despotic power. 



That from this division of powers conflicts may arise is inevitable ; but 

 this is a necessary condition of human life, and perhaps essential to human 

 development, individual and political. Such conflicts may indeed even 

 result in civil war, and in fact have done so in numerous cases ; but this 

 is but one of the means by which rational government, political freedom, 

 and civilization have been developed. Nor is it possible to preserve tlie 

 fruits gathered from our painful experience, in any othgr way than by 



* Supra, p. 205. t Theory of the State, pp. 333, 334. 



