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CHAPTER FOUR THE LOGIC OF SUPREMACY "We have neither knowledge nor system nor principle," Governor Thomas Pownall complained of the governance of the British empire following passage of the Declaratory Act, "we have but one word . . . sovereignty-and it is like some word to a mad-man which, whenever mentioned, throws him into his ravings."l He meant that the Declaratory Act had elicited a way of arguing that was a departure from the familiar rhetoric of English jurisprudence. In the new constitutional liturgy quickened by the Act, power rather than right, expediency rather than precedent, were measures for action, and the concept ofsovereignty was used to answer questions of law that usually were answered by experience , practice, precedent, and history. When Americans appealed to the traditional, familiar, English constitutionalism of custom, imperialists replied by citing the Declaratory Act, that is, the sovereignty of Parliament. Even as late as the 1770s the concept of sovereignty seemed to many legal theorists to be a foreign, uncomfortable intrusion upon commonlaw thought, despite being by no means new to English constitutional jurisprudence.2 The antiprerogative lawyer Sir James Whitelocke had defined it as early as 1610 when arguing against James I's claim to authority of promulgating new impositions by letters patent. "[I]n every Com- THE LOGIC OF SUPREMACY mon-wealth and government there be found some rights of Soveraignty," he contended, "unless Custome, or the provisional ordinance of that State doe otherwise dispose of them: which Soveraigne power is potestas suprema, a power that can controule all other powers, and cannot be controuled but by itself." It is worth emphasizing that Whitelocke betrayed a common-law training when he said that custom and organic law checked sovereignty. Even as late as the age of the American Revolution , the definition ofsovereignty was clouded by the reluctance of many constitutionalists to locate arbitrary power anywhere within the confines of the British constitution.3 The English constitution had first encountered the concept of sovereignty during the Civil War when Charles I and the House of Commons competed for the allegiance and obedience of subjects. A theory emerged with the writings of Thomas Hobbes, Robert Filmer, John Locke departing from the common-law tradition and from the constitutionalism that would dominate American legal thought both before the Revolution and into the age of the early republic. Hobbes and Filmer utilized sovereignty to place state power beyond the limitations of legalism , custom, precedent, history, and inherent individual rights, or what, in the late eighteenth century, was known as constitutional government. "Power," no longer constrained by "right," was free to function on behalf of a more efficient, sensible, practical law, unencumbered by outdated precedent and time-worn custom.4 The concept of sovereignty had compelling attractions but did not gain indisputable acceptance in England or Great Britain due to the threefold opposition of (1) common lawyers trained in the legalism of a law that restrained more than it served power, (2) theorists of liberty mindful of the doctrine of nonresistance and the maxim of passive obedience, discredited constitutional principles that the eighteenth century associated with the House of Stuart, and (3) constitutionalists who could not brook notions of arbitrary power.5 Dictionaries in the age ofthe American Revolution defined "sovereignty " as the "highest place, power or excellence" or the "highest place, supremacy." There was a set formula, familiar to every reader of popular political literature, that explained the notion in terms of ultimate, irreducible authority: "there is in every civil community, some where or other placed, a supreme power of making laws, and inforcing the observation of them."6 The rule was so irrefragable that proof was superfluous. "My lords, it is impossible to endeavour to prove a self evident truth," Lord Chancellor Northington exclaimed during the Declaratory Act debate . "Every government can arbitrarily impose laws on all its subjects; there must be a supreme dominion in every state."7 That was the salient factor. Sovereignty had to be the "supreme power," a power "uncon- THE LOGIC OF SUPREMACY troulable and irresistible" or, as Blackstone said, "a supreme, irresistible, absolute, uncontrolled authority."8 Samuel Johnson concocted what H. L. A. Hart termed "a layman's version of Blackstone's principle." In sovereignty there are no gradations. . . . There must in every society be some power or other from which there is no appeal, which admits no restrictions, which pervades the whole mass of the community , regulates and adjusts all subordination, enacts laws or repeals them, erects or annuls...

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