English v. U.S. Concepts

As stated by Justice Wilson in Chisholm, Ex'r. v. Georgia, 2 Dall, 419, 1 U.S. (L.ed., 454, 457, 471, 472), 1793:

"... the British Government, as described by Sir William Blackstone and his followers....is a despotic Government. It is a Government without a people. In that Government, as so described, the sovereignty is possessed by the Parliament: In the Parliament resides that incontrollable and despotic power, which, in all Governments, must reside somewhere. The constituent parts of the Parliament are the King's Majesty, the Lord's Spiritual, the Lord's Temporal, and the Commons. The King and these three Estates together form the great corporation or body politic of the Kingdom. All these sentiments are found; the last expressions are found verbatim in the commentaries upon the laws of England. The Parliament form the great body politic of England! 2 What, then, or where, are the PEOPLE? Nothing! No where! They are not so much as even the "baseless fabric of a vision!" From legal contemplation they totally disappear! Am I not warranted in saying, that, if this is a just description; a Government, so and justly so described, is a despotic Government?..."

The following section is based upon Justice Joseph Story in Commentaries on the Constitution of the United States, With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution, Hilliard, Gray and Co, Boston; Brown, Shatuck and Co., Cambridge, c1833; (Hereafter called "Commentaries,") Book II:

Justice Story quotes Dr. Rush in explaining the fundamental conflict between the European concept of "sovereignty" and that upon which the political system of the United States was developed: 

"He [Dr. Rush] says, ' The people of America have mistaken the meaning of the word ' sovereignty.' Hence each state pretends to be sovereign. In Europe it is applied to those states, which possess the power of making war and peace of forming treaties, and the like. As this power belongs only to congress, they are the only sovereign power in the United States. We commit a similar mistake in our ideas of the word 'independent.' No individual state, as such, has any claim to independence. She is independent only in a union with her sister states in congress..." ( Amer. Museum, 8, 9.)

Story goes on to explain the subtleties of the American perspective:

AS KNOWN UNDER THE "LAW OF NATIONS"

  DEFINITION of SOVEREIGNTY: "... By 'sovereignty' in its largest sense is meant, supreme, absolute, uncontrollable power, the jus summi imperii, (1 Bl. Comm. 49; 2 Dall. 471. Per Jay C. J.) the absolute right to govern..."

  The term "SOVEREIGN" (adjective) OFTEN REFERENCES THE PRIMARY or INDEPENDENT STANDING of a NATION or STATE relative to OTHERS as "FOREIGN": "...There is another mode, in which we speak of a state as sovereign, and that is in reference to foreign states. Whatever may be the internal organization of the government of any state, if it has the sole power of governing itself and is not dependent upon any foreign state, it is called a sovereign state; that is, it is a state having, the same rights, privileges, and powers, as other independent states. It is in this sense, that the term is generally used in treatises and discussions on the law of nations....A state, which possesses this absolute power, without any dependence upon any foreign power or state, is in the largest sense a sovereign state. (2 Dall. 456, 457. Per Wilson J.)

AMERICAN PERSPECTIVE

  SOVEREIGNTY - A SUPERIOR POWER and AUTHORITY of the BODY POLITIC INHERENT in the ACT of CIVIL ASSOCIATION: "...By the very act of civil and political association, each citizen subjects himself to the authority of the whole; and the authority of all over each member essentially belongs to the body politic. (Vattel, B. 1, ch. 1, #167)... A state or nation is a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by their combined strength. (Vattel, B. 1, ch. 1, #167; 1; 2 Dall. 455. Per Wilson J.)"

  STATE: "... In its most enlarged sense it means the people composing a particular nation or community. In this sense the state means the whole people, united into one body politic; and the state, and the people of the state, are equivalent expressions. (Penhallow v. Doane, 1 Peters's Cond. Rep. 37, 38, 39; 3 Dall. R. 93, 94. Per Iredell J. Chisholm v. Georgia, 2 Dall. 455. Per Wilson J. S. C. 2 Cond. Rep. 656, 670; 2 Wilson's Lect. 120; Dane's Appx. #167; 50, p. 63.) Mr. Justice Wilson, in his Law Lectures, uses the word "state" in its broadest sense. "In free states," says he, "the people form an artificial person, or body politic, the highest end noblest, that can be known. They form that moral person, which in one of my former lectures, (1 Wilson's Lect. 304, 305,) I described, as a complete body of free, natural persons, united together for their common benefit; as having an understanding and a will; as deliberating, and resolving, and acting; as possessed of interests, which it ought to manage; as enjoying rights, which it ought to maintain; and as lying under obligations, which it ought to perform. To this moral person, we assign, by way of eminence, the dignified appellation of STATE." (2 Wilson's Lect. 120, 121.)

 

IN ITS LIMITED SENSE

  STATE: "(Mr. Madison, in his elaborate Report in the Virginia legislature in January, 1800, adverts to the different senses, in which the word 'state' is used. He says, "It is indeed true, that the term "states" is sometimes used in a vague sense, and sometimes in different senses, according to the subject, to which it is applied. Thus it sometimes means the separate sections of territory, occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies, as organized into those particular governments; and lastly, it means the people, composing those political societies in their highest sovereign capacity.") Thus, the actual government of a state is frequently designated by the name of the state. We say, the state has power to do this or that; the state has passed a law, or prohibited an act, meaning no more than, that the proper functionaries, organized for that purpose, have power to do the act, or have passed the law, or prohibited the particular action. The sovereignty of a nation or state, considered with reference to its association, as a body politic, may be absolute and uncontrollable in all respects, except the limitations, which it chooses to impose upon itself. (2 Dall. 433; Iredell J. Id. 455, 456. Per Wilson J.) But the sovereignty of the government, organized within the state, may be of a very limited nature. It may extend to few, or to many objects. It may be unlimited, as to some; it may be restrained, as to others. To the extent of the power given, the government may be sovereign, and its acts may be deemed the sovereign acts of the state. The state, by which we mean the people composing the state, may divide its sovereign powers among various functionaries, and each in the limited sense would be sovereign in respect to the powers, confided to each; and dependent in all other cases. (3 Dall. 93. Per Iredell J. 2 Dall. 455, 457. Per Wilson J.)"

  SOVEREIGNTY: "...'sovereignty' is often used in a far more limited sense, than that, of which we have spoken, to designate such political powers, as in the actual organization of the particular state or nation are to be exclusively exercised by certain public functionaries, without the control of any superior authority. ... Now, in every limited government the power of legislation is, or at least may be, limited at the will of the nation; and therefore the legislature is not in an absolute sense sovereign. It is in the same sense, that Blackstone says, "the law ascribes to the king of England the attribute of sovereignty or preeminence," (1 Bl. Comm. 241.) because, in respect to the powers confided to him, he is dependent on no man, and accountable to no man, and subjected to no superior jurisdiction. Yet the king of England cannot make a law; and his acts, beyond the powers assigned to him by the constitution, are utterly void."