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either in logic or in fact, until it declared the sovereignty to be in the nation — in the nation organized in the Assembly. The common consciousness is the purest light given to men by which to interpret truth in any direction; it is the safest adviser as to when principle shall take on the form of command; and the common consciousness is the state conscious
In the modern national state we call it the national consciousness. The so-called laws of God, of nature, of reason, and between states are legally, and for the subject, what the state declares them to be ; and these declarations and commands of the state are to be presumed to contain the most truthful interpretations of these principles, which a fallible and developing human view can, at the given moment, dis
It is begging the question to appeal to the consciousness of the world or of humanity against the consciousness of the state ; for the world has no form of organization for making such interpretation, or for intervening between the state and its citizens to nullify the state's interpretation. I do not ignore the fact that some great publicists think they see in the body of general agreements, positive and customary, between states, called international law, the postulates of a consciousness wider than that of a single state. This may be true ; but we must not forget that these agreements and customs are not law between a state and its own subjects unless the state recognizes them as such. For instance, it is a firmly established principle of our own constitutional law that our own governmental organs, authorized thereto by the state, are the interpreters, in last instance, of international law for all persons subject to their jurisdiction. At the present stage of the world's civilization, a nearer approximation to truth seems to be attainable from the standpoint of a national state consciousness than from the standpoint of what is termed the consciousness of mankind. An appeal to the consciousness of mankind, if it bring any reply at all, will receive an answer confused, contradictory, and unintelligible. In the far-distant future it may be otherwise; but for the present and the discernible future, the national state appears to be the organ for the interpretation, in last instance, of the order of life for its subjects. Contact between states may, and undoubtedly does, clarify and harmonize the consciousness of each ; but it is still the state consciousness which is the sovereign interpreter, and the state power which is the sovereign transformer of these interpretations into laws. But, it may be objected, if sovereignty must have this character of infallibility, it should be denied to the state altogether. That would mean, at once and from the start, the annihilation of the state. The state must have the power to compel the subject against his will: otherwise it is no state; it is only an anarchic society. Now the power to compel obedience and to punish for disobedience, is, or originates in, sovereignty. This condition can, therefore, offer no loophole of escape from the proposition.
1 Thirty Hogsheads of Sugar v. Boyle, U. S. Reports, 9 Cranch.
In the second place, the unlimited sovereignty of the state is not hostile to individual liberty, but is its source and support. Deprive the state, either wholly or in part, of the power to determine the elements and the scope of individual liberty, and the result must be that each individual will make such determination, wholly or in part, for himself; that the determinations of different individuals will come into conflict with each other; and that those individuals only who have power to help themselves will remain free, reducing the rest to personal subjection. It is true that the sovereign state may confer liberty upon some and not upon others, or more liberty upon some than upon others. But it is also true that no state has shown so little disposition to do this, and that no state has made liberty so full and general, as the modern national popular state. Now the modern national popular state is the most perfectly and undisputedly sovereign organization of the state which the world has yet attained. It exempts no class or person from its law, and no matter from its jurisdiction. It sets exact limits to the sphere in which it permits the individual to act freely. It is ever present to prevent the violation of those limits by any individual to the injury of the rights and liberties of another individual, or of the welfare of the community. It stands ever ready, if perchance the measures of prevention prove unsuccessful, to punish such violations. This fact surely indicates that the more completely and really sovereign the state is, the truer and securer is the liberty of the individual. If we go back an era in the history of political civilization, we shall find this view confirmed beyond dispute. The absolute monarchies of the fifteenth, sixteenth, and seventeenth centuries were, no one will gainsay, far more sovereign organizations of the state than the feudal system which they displaced; and yet they gave liberty to the common man at the same time that they subjected the nobles to the law of the state. In fact they gave liberty to the common man by subjecting the nobles to the law of the state. Should we continue to go backward from the absolute monarchic system to those systems in which the sovereignty of the state was less and less perfectly developed, we should find the liberty of the individual more and more uncertain and insecure, until at last the barbarism of individualism would begin to appear.
At the beginning of this argument, I assumed the state to be deprived of its unlimited power over the individual. But who or what can do this? That which can be so deprived is not the state; that which deprives is the state. Really the state cannot be conceived without sovereignty; i.e. without unlimited power over its subjects. That is its very
Of course the state may abuse its unlimited power
1 Französische Geschichte, Bd. I, S. 34; Englische Geschichte, Bd. I, S. 97, 98; Von Sybel, über die Entwickelung der absoluten Monarchie in Preussen, S. 24 ff.; Kroncs, llandbuch der Geschichte Oesterreichs, Bd. IV, S. 488.
over the individual, but this is never to be presumed. It is the human organ least likely to do wrong, and, therefore, we must hold to the principle that the state can do no wrong.
I think the difficulty which lies in the way of the general acceptance by publicists of the principle of the sovereignty of the state is the fact that they do not sufficiently distinguish the state from the government. They see the danger to individual liberty of recognizing an unlimited power in the government; and they immediately conclude that the same danger exists if the sovereignty of the state be recognized. This is especially true of European publicists, most especially of German publicists. They are accustomed practically to no other organization of the state than in the government; and in spite of their speculative mental character, they, as well as other men, reveal in their reflections a good deal of dependence upon the conditions of the objective world. In America we have a great advantage in regard to this subject. With us the government is not the sovereign organization of the state. Back of the government lies the constitution ; and back of the constitution the original sovereign state, which ordains the constitution both of government and of liberty. We have the distinction already in objective reality; and if we only cease for a moment conning our European masters and exercise a little independent reflection, we shall be able to grasp this important distinction clearly and sharply. This is the point in which the public law of the United States has reached a far higher development than that of any state of Europe. Several of the most modern European publicists, such as Laband, Von Holst and Jellinek, have discovered this fact ; and their conception of the state has, in consequence thereof, become much clearer. The European states have made great progress towards this condition since the period of the French Revolution. Europe has seen the French state several times organized in constituent convention; and in the years 1848 and 1867 something very like constituent conventions sat at Frankfort and Berlin, to say nothing of the Spanish Cortes and the less important movements of similar character. Such an organization of the state is, however, hostile to independent princely power. It tends to subject the prince to the state. It may leave the hereditary tenure, but it makes the princely power an office instead of a sovereignty. Therefore the princely government disputes the sovereignty of the constituent convention; and the political scientists become confused in their reflections by the din and smoke of the conflict in the objective world. They do not know exactly where the state is; and, therefore, they hesitate to recognize its great and essential attribute of sovereignty. The national popular state alone furnishes the objective reality upon which political science can rest in the construction of a truly scientific political system. All other forms contain in them mysteries which the scientific mind must not approach too closely.