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28 DISTINCTION BETWEEN NATION AND GOVERNMENT.

not be able, therefore, to separate these ideas, and to present each as distinct from the other. As well might one attempt to give a scientific description of light and of color without reference to their mutual relations and combined existence.

$ 37. And first, the distinction must be carefully and constantly preserved between the nation, and the government which that nation has actively created, or has passively per mitted, as the agent for the expression of its supreme will. The people themselves, the entire mass of persons who compose the political society, are the true nation, the final, permanent depositary of all power. The organized government, whatever be its form and character, is but the creature and servant of this political unit which alone possesses dominion in itself. It is true that the people, the nation, may have either actively constituted or passively admitted the rulers to be the sole channels and means through which their sovereign power shall be ordinarily wielded and directed for the national purposes,

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may

have bound themselves not to resume the direct and efficient management of that power except in certain well-defined and established methods; nay, they may have restricted the government itself in the exercise of its functions, so that beyond certain appointed limits it cannot go, and thus may have denied to this government the rightful use of all the attributes of sovereignty which they themselves possess, so that for the time being these attributes cannot be brought into play by either; but it is no less true that these attributes still potentially exist in the nation, ready to be called forth whenever the people shall see fit to follow the defined and established methods, and to put their inherent, paramount force in motion,

§ 38. This great principle of human rights and of political science, which was distinctly announced to the world and first practically acted upon by our own forefathers, and which is theoretically admitted by most writers on Public Law, has been virtually overlooked or forgotten by many supporters of the “ State Rights” theory, in the protracted discussions that have arisen upon the Constitution. The nation and the states have been continually confounded with the mere ruling apparatus or governments of these societies. All powers have been denied to the nation except those conferred upon its limited government, and as a consequence the very existence of a nation at all has been also denied.

The intentional ignoring, or tacit rejection of the same doctrine, is the fallacy which runs through the whole of Mr. Austin's elaborate lecture upon the nature of the independent political society and of political sovereignty found in the first volume of his “Province of Jurisprudence,” and which thus destroys much of the usefulness of that treatise.

$39. It is certainly unnecessary for Americans to argue in favor of the correctness of this principle. Our whole political structure, our whole civilization, is based upon it. So true is it to nature and humanity, that not only have European publicists adopted it, but even the European governments do not now reject it; and some of the most arbitrary claim to wield their power by virtue of an authority derived from its practical recognition. The idea that the rulers, whether one or many, compose the state, is a thing of the past, a notion which has been swept away in the resistless march of social development.

$40. The foregoing postulate being accepted, a nation, in its strict sense, may be defined to be an independent, separate, political society, with its own organization and government, possessing in itself inherent and absolute powers of legislation. It may not, from some peculiar features of its voluntarily created or permitted form of civil order, have enabled its rulers to call into efficient action all of these inherent and absolute powers of legislation, and it may have restrained itself, by solemn and fundamental enactments, from exercising these complete powers except by a course, and in a manner, distinctly defined and established ; yet so far forth as it possesses these attributes without limit, and so far forth as it has clothed its constituted rulers with functions which involve these attributes under limits, it knows no superior to itself, it is not subordinate to any other political society or government.

$41. Such a political society is a nation; this nation pos

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sesses political sovereignty. It may have any organization, from the purest democracy, to the most absolute monarchy; but considered in its relations to the rest of mankind and to its own individual members, it must exist, to the extent at least of enacting laws for itself, as an integral, independent, sovereign society among the other similar nations of the earth. Its government, or in other words, the permanent agents which it has established to make efficient its organic will, must be so far independent, that no other power may authoritatively control its legislation, no other state may interfere, and, according to any received and admitted constitution of things, prescribe what the law shall be.

§ 42. From this description of the “ Nation" and of Political Sovereignty,” it is evident that the latter term especially is often used in a sense far from correct, falling far short of the fulness of meaning which legitimately belongs to it. If we may properly apply the word sovereign to political societies which are really subordinate, because within their subordinate sphere they possess a large mass of political powers, and can lawfully act throughout a wide range over their immediate subject inferiors, then we may with equal propriety describe as sovereign any society or person that occupies a position of superiority simply in relation to others who are dependent. In truth, the term sovereign, used as a word of political import, is the expression of an absolute idea; it does not admit any notion of grades, of inferiority, of dependence, or of division.

Of course, I purposely put out of view the supremacy of God over nations as well as over individual men, for I am speaking only of the character of civil societies in their relations to each other and to their own members.

SECTION III.

THE PRINCIPAL PROPOSITION IN REGARD TO THE NATURE OF THE

CONSTITUTION AND THE NATIONALITY OF THE UNITED STATES.

$ 42 a. The meaning of the terms Nation and Political Sovereignty having been thus explained, I purpose to show that

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the United States fulfils all the requirements which have been mentioned as necessary to the existence of a nation ; that the people thereof is an independent, separate political society with its own organization and government, possessing in itself inherent and absolute powers of legislation ; that by its Constitution it has created a government as its agent for making its will efficient, but has therein expressly prevented that agent from calling into action all of its inherent and absolute powers; that by the same Constitution it has also restrained itself from exercising those powers in their full measure, except by methods carefully defined in the same instrument; that by pursuing these methods there is no limit to the operation of the national force; that its attributes are self-existent and not derived ; that it knows no superior; that no other civil society may authoritatively control its legislation, or judge of the extent to which that legislation may be carried.

43. On the other hand, in respect to all these particulars which truly constitute a nation, each state must be described in terms the exact opposites of those employed in reference to the United States. Each state is not an independent, separate political society ; it does not possess in itself inherent and absolute powers of legislation; the functions of its rulers are limited not only by its own local constitution, but by that of the Union, and cannot be indefinitely enlarged by any amendments of its own organic law, for the organic law of the nation binds it by an irresistible sanction ; another political society not only may but must control its legislation and judge of the extent to which that legislation may be carried. Instead of enjoying attributes of sovereignty, each state, as a separate political society, is in a position of permanent subordination.

§ 44. Of course I am now speaking of the United States and of the several commonwealths under our present civil order, as that is adjusted by and through the existing organic law. I make no reference to the event of a revolution, and the results which such a catastrophe might produce ; for revolutions are accomplished not according to law and the estab

lished order of things, but against law, and by the destruction of the constituted authority.

The propositions here stated will be illustrated in the two succeeding chapters by a historical sketch, and by an examination of the Constitution itself.

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