Page:The Galaxy, Volume 5.djvu/813

1868.] able and towering leader, who is wont to push his theories into practice.

I do not, indeed, apprehend that this doctrine that "the sovereign power in this Republic is the Congress of the United States," will ever prevail; but even its enunciation is dangerous in a troublous epoch. It is a doctrine which not only impudently contradicts the history of the Republic, but one which probably annihilates and makes impossible any written Constitution—certainly any written Constitution which, like ours, recognizes the Government as composed of three coordinate branches. Congress is a creature of the Constitution, and for that reason, if for no better, cannot be the "sovereign in this Republic." Even the whole Government, taken together, is not sovereign, since it, too, is the creature of the Constitution, and not its creator. The Constitution precedes, in order of time and order of authority, all branches of the Government individually, and all collectively. But a written Constitution, in whatever country it exists, implies, of necessity, a constitution-maker prior to it in time, and above it in authority. To this constitution-maker we must resort in order to find the sovereign. If Coke could say "Magna Charta is such a fellow that he will have no sovereign," much more can we say the American Constitution will have no other sovereign than that from whom the Constitution derives its authority—the People.

At first, a process of reasoning which ends by announcing that in the United States the sovereign power is vested in the people, may sound like a platitude. I wish it were such; but if axiomatic hitherto, it is to be feared this proposition will be so no longer. A cautious thinker will observe, also, that the great fundamental question of political duty and constitutional law is—"Who or what is the supreme power in this Republic, for us all to obey?" The short-metre debater answers: "Why, the People." But what is meant by the People? With that question you touch the sap at the root of Reconstruction, which sends its influence through every limb and twig of it. It should seem that most people regard the sovereign people as the dwellers in the land—the thirty-six millions of breathing human beings whom the census takes note of. Others do not accept the total population as the state, but the male population; or the free male population; or the free male white population, or something or somebody else. Some locate the supreme power in the community at large, others, it seems, lodge it in Congress. A few maintain, after the theory vindicated in that profound and masterly work, "The Law of Freedom and Bondage," (the storehouse of some subsequent treatises on American constitutional law) that the sovereign power resides only in the political people of the state which we call the United States, that is to say, in the possessors of the elective franchise. And this seems to me to be beyond question the historic fact, and hence the law. But, while the foundation principle of all the public law of any country must be that there exists a determinate person or a determinate aggregate of persons holding the supreme or sovereign power, it seems to be an open question, where, in our country, that power resides.

But I return from this digression over the broad field of the legal definition and description of the sovereign power to the specific perversion already cited. Yet this perversion need not be discussed, for the same reason that a proposition that the sovereign power is vested in the State of Pennsylvania, need not be discussed—it contradicts the historic fact. As it is not impossible that the State of Pennsylvania may become the sovereign of the American Continent, so it is not impossible that Congress may become the sovereign. But in either case, the state would be a different state from the present United States of America, which last would have parted with its sovereignty. A doctrine so revolutionary is not likely to make great headway; but it is none the less remarkable as a sign of the times: as such we may regard it.

At the outset, it was evident that in a contest of one branch of the Government with another, the weaker must go to the wall. Were the question involved purely a personal one, it would be trivial, since few men are singly of much importance; but any strife between the coordinate branches of a popular government is disastrous—disastrous because it is a contest, and however ended. In the delicate poise