The Indivisibility of Sovereignty. Indivisibility has long been among the defining characteristics of sovereignty. As Hans J. Morgenthau once stated this point.
“sovereignty over the same territory cannot reside simultaneously in two different authorities, that is, sovereignty is indivisible”
Only One Sovereign in the State:
Another characteristic of sovereignty which requires more detailed consideration is the quality of unity. Being the highest will (or power) in the state, it cannot be divided without producing several wills, which is, of course, inconsistent with the notion of sovereignty.
As Jellinek remarked, that notion of a divided, fragmented, diminished, limited, relative sovereignty is a contradiction in adjective Were the theory of certain pluralists who would split sovereignty into fragments and distribute it between the state and other associations or groups, put into effect it would ultimately lead, in all probability, to the disintegration of the state.
The existence of several supreme wills, each equally capable of issuing commands and exacting obedience, would obviously result in conflicts and ultimate paralysis of the state. If the several supposed wills were coordinated, obviously neither could be sovereign; if one were superior and the other subordinate, manifestly the former would be sovereign, and the latter subject, and what Would appear to be a division of sovereignty would, in fact, be no division.
By no one was this truth more forcibly set forth than by the American statesman John C. Calhoun, in his Disquisition on Government, written in 1851. Sovereignty, he declared, is an entire thing. To divide it is to destroy it. It is the supreme power in a state, and we might just as well Speak of half a square or half a triangle as of half a sovereignty.
Theory of Divided Sovereignty:-
But this view is by no means universally accepted by publicists and political writers to-day. The existence of many petty states on the continent of Europe during the sixteenth and seventeenth centuries, which were. Though not theoretically independent, practically contributed to the spread of the popular belief in the distinction between part sovereign and fully sovereign states- a distinction that rests in fact on the notion of divided sovereignty. In more recent times, the formation of so-called composite states: confederations, real unions, and federal states, and establishing such relationships as are involved in the creation of protectorates have powerfully strengthened the divisibility theory.
The question of dual sovereignty first became a controversy of practical politics in the United States of America toward the middle of the nineteenth century. Under the Articles of Cori-federation, each member of the union expressly retained its own sovereignty so that the possibility of misunderstanding was avoid-eds. But the constitution of the federal union of 1789 was silent on this all-important subject. Hence the questions were left open as to whether sovereignty remained in the individual states where it had formerly rested, whether it was in the united state created by their joint agency, or whether it was divided between the individual states on the one hand and the union on the other. This casus omissus was doubtless due to a compromise between the conflicting forces of particularism and nationalism in the con~vention that framed the constitution.
Publicists generally held the theory of a dual sovereign under the American federal system in America at the time of the adoption of the constitution; it was enunciated in the Federalist by Hamilton and Madison and was adopted at an early date by the Supreme Court, which held that the United States is sovereign as to the powers which have been conferred upon the national government and that the states are sovereign as to those which were reserved to them, and the court still maintains this view.
It received the approval of such eminent. Constitutional lawyers as Judges Cooley46 and Story and political writers like De Tocqueville, Wheaton, Halleck, Hurd, Bliss, and many others.
There is no question, says Hurd
“that the statesmen of all sections who made the constitution of the United States understood that political sovereignty was capable of division according to its subject and powers.”
Their view was that the sovereignty is divided between what they called the nation on the one hand and the states on the other that is, each is sovereign within the sphere marked out for it by the constitution of the union.
This theory of dual sovereignty was vigorously combated by Calhoun, who, as already stated, enunciated the doctrine that sovereignty was a unit, incapable of division and that it existed unimpaired and in its entirety in the separate states composing the union.
The question so far as the United States was concerned was finally settled by the armed conflict of 1861-1865, but there is still a difference of opinion among able writers as to whether the power which is left to the states is sovereignty or mere local autonomy.
Views of Foreign Writers:-
Among foreign publicists, we find the same diversity of Opinion regarding the divisibility of sovereignty. Freeman asserted that the complete division of sovereignty might look upon as essential to the federal ideal’s absolute perfection. The French scholar’s De Tocqueville, Esmein, Duguit, LeFur, and others appear to hold substantially the same view. Many German publicists support the theory so far as it relates to sovereignty in federal states.
The father of the divisibility doctrine in Germany was the noted scholar Waitz. Among his followers may be Von Mohl, Bluntschli, Brie, Westerkamp, Bornhak, Schulze, Riittiman, and others. However, after the founding of the empire and the triumph of nationalism over particularism, the theory of divided sovereignty found less favor among the German jurists and philosophers. The unity theory came to have more advocates than formerly.
According to the latter view, sovereignty in the German Empire (1871-1919) reposed in the totality of the German states regarded as a single personality instead of being divided between the empire, on the one hand, and the states composing it, on the other. When the latter became members of the empire, they gave up their sovereignty, receiving in exchange, as Bismarck expressed it, a share in the empire’s joint sovereignty.
Division of Governmental Power:-
While the better opinion is in favor of the theory that sovereignty is a unit and therefore incapable of division, there is no reason why the expression of the powers of sovereignty, its emanations or manifestations, cannot be divided and expressed through various mouthpieces and carried out through a variety of organs.
Thus, said Rousseau, power may be divided, though it will never be. It is a unit and indivisible. Those who maintain the divisibility theory, as Rousseau points out, really confuse sovereignty with its emanations. The same idea was expressed by Calhoun, who said with evident truth. There is no difficulty in understanding how powers appertaining to sovereignty may be divided. The exercise of one portion be delegated to one set of agents. and another portion to another, or how sovereignty may be vested in one man a few, or many. But how sovereignty itself, the supreme power, can be divided, it is impossible to conceive.
Applying this principle to the so-called federal state, we find that the sovereign will express itself on certain subjects through the medium of a central government and certain other subjects through the organs of the individual political units composing the federation. But there is no partition of sovereignty.
There is a division by the sovereign itself of governmental powers and distribution of them among two sets of organs, but no division of the supreme will itself. To say that the component members of a federal union are partly sovereign or sovereign within their particular spheres is an abuse of the term sovereignty.
Juristically it is just as logical to say that a municipal corporation or religious society is sovereign within the sphere assigned to it by the law. As Jellinek observed, the theory of divided sovereignty in a federal state rests upon a confusion of sovereignty with political power. He said that what is divided is neither Sovereignty nor state power but rather the objects upon which their activity is exercised.
There is no middle ground, says an able writer, speaking of the nature of sovereignty in the American federal system sovereignty is indivisible, and either the central power is sovereign and the individual members not, or vice versa.
That power and that power alone is sovereign in a federal union that can, in the last analysis, determine the central government’s competence and those of the component states. They can redistribute these powers between them in such a way as to enlarge or curtail the sphere of either. That power is not in the central government nor the states, it is over and above both, and wherever it is, there is the sovereign.
The task of running the sovereign to cover, especially in today’s composite states, is not always easy, and when discovered, it is not always recognized. It is tough to place one’s finger on the exact spot where it reposes.
The constitutional lawyer arid the layman do not always travel the same path in the search for it, and they do not always find it in the same place. But it is always present somewhere. If we push our inquiry in the search until we find that person, assembly, or group which has the power to say the last word in all matters of authority, we shall find ourselves in the presence of the sovereign.