of this system of internal checks, I observe that the States, in both capacities, are, by the Constitution, subjected to checks in the form of direct prohibitions emanating from a source external to themselves as States, being limitations upon their exercise of sovereign powers, imposed by the people of the United States.1 Admitting, then, that the powers of sovereignty, under the present Constitution, are exercisible only by the people as discrimi nated into States, and, as such, acting in the two capacities of State peoples and State governments, the fact that such limitations have been imposed is a further and an incontestable proof that the States are not themselves in any capacity, either separate or united, the sovereign power in the Union, but only the depositaries for the time being of such sovereign powers as the sovereign has chosen to have exercised.

§ 60. The theory, nevertheless, that sovereignty inheres in the people of the United States, not simply, or as a political unit, but as discriminated into States, has the sanction of high authority. Although I believe this to be an error, arising from not distinguishing the sovereign body from the system of functionaries in whom is temporarily vested by the sovereign the exercise of sovereign powers, I shall give extracts from the writings of one or two publicists who hold the view indicated.

Mr. John Austin, in his work, "The Province of Jurisprudence Determined," contrasting what he calls supreme federal governments with permanent confederacies of supreme governments, says of the government of the United States:

"The supreme government of the United States of America agrees (I believe) with the foregoing general description of a supreme federal government. I believe that the common gov ernment, consisting of the Congress and the President of the United States, is merely a subject minister of the United States governments. I believe that none of the latter is properly sovereign or supreme, even in the state or political society of which it is the immediate chief. And lastly, I believe that the sovereignty of each of the states, and also of the larger state arising from the Federal Union, resides in the states' governments, as forming one aggregate body; meaning by a state's government, not its ordinary legislature, but the body of its citizens which appoints its ordinary legislature, and which, the Union apart, is 1 See Art. I. secs. 8, 9, and 10, Const. U. S.

properly sovereign therein. If the several immediate chiefs of the several United States were respectively single individuals, or were respectively narrow oligarchies, the sovereignty of each of the states, and also of the larger state arising from the Federal Union, would reside in those several individuals, or would reside in those several oligarchies, as forming a collective whole." 1

There is, perhaps, some ambiguity in this passage, as it is not clear whether, by the body of the citizens of a State" which appoints its ordinary legislature," the author means the totality of its citizens, forming a corporate unit, which, "the union apart," virtually appoints the legislature, or the body of the electors, which immediately and formally appoints it. If the former was intended, his theory was clearly what I have supposed above; if the latter, it was the wholly untenable one, that sovereignty in the United States inheres in the electors or voting people of the respective States, considered "as forming a collective whole," - a theory which has the sanction of so eminent an authority as Mr. Hurd.2

§ 61. A similar view of the mode in which sovereignty inheres in the people of the United States has been lately propounded by Mr. Brownson, with his characteristic force and ingenuity, in his work, "The American Republic." Having located political sovereignty, in general, in the people, "not individually, but collectively, as civil and political society," he proceeds to determine how it exists in the people of the United States. Commenting upon the opening words of the preamble of the Federal Constitution," We, the people of the United States," he says: "Who are this people? How are they constituted, or what the mode and conditions of their political existence? Are they the people of the States severally? No; for they call themselves the people of the United States. Are they a national people, really existing outside and independently of their organization into distinct and mutually independent States? No; for they define themselves to be the people of the United States. If they had considered themselves existing as States only, they would have said, 'We, the States;' and if independently of State 1 John Austin, The Province of Jurisprudence Determined, Vol. I. p. 222.

2 Hurd, Law of Freedom and Bondage, Vol. I. § 343, note 2; The Theory of National Existence, pp. 127, 144, and 147.

organization, they would have said, 'We, the people, do ordain,' &c.

"The key to the mystery," he continues, "is precisely in this appellation, United States, which is not the name of the country, for its distinctive name is America, but a name expressive of its political organization. In it there are no sovereign people without States, and no States without union, or that are not united States. The term united is not part of a proper name, but is simply an adjective qualifying States, and has its full and proper sense. Hence, while the sovereignty is and must be in the States, it is in the States united, not in the States severally, precisely as we have found the sovereignty of the people is in the people collectively, or as society, not in the people individually. The life is in the body, not in the members, though the body could not exist if it had no members; so the sovereignty is in the Union, not in the States severally; but there could be no sovereign union without the States, for there is no union where there is nothing united."1

§ 62. In concluding this discussion of sovereignty in the United States, it should be stated that whenever, in judicial decisions or in common parlance, the term sovereign is applied to a State or to its people, it must be taken to signify the possession by such State or people of the right to exercise sovereign powers in subordination to the people of the Union, from whom it has received such powers by delegation. Under the Constitution of the nation, comprising the Federal and all the State Constitutions, each State is permitted by the sovereign to frame for its own people its local Constitution, subject always to the guaranty of the national government. In performing that work, State Conventions and legislatures often assume the airs and the language of representatives of real sovereigns. In truth, however, a State is not a sovereign. In passing upon a local Constitution, the people of a State are performing a delegated function, -exercising, by permission, and in behalf of the people of the United States, a sovereign power belonging only to the latter. That this is the most characteristic, and by far the most valuable, of all the features of the national Constitution, is undeniable, but that fact does not at all affect its intrinsic character as above explained. With a proper defini

1 The American Republic, pp. 220, 221.

tion of "States Rights," then, every lover of his country, and every friend of its liberties, must be a "States Rights man"; but that definition must be such as to leave a country to love, - a thing possible only when the States are regarded as expedients subordinate to the nation, subservient in all respects to its interests, and therefore, if the nation so will, temporary.1

1 Upon the whole question of sovereignty, its location and its exercise by the extensive hierarchy of representatives of the sovereign, state and national, see Webster's speech in the case of Luther v. Borden, 7 How. R. 1, in Great Speeches of Daniel Webster, by E. P. Whipple (Little, Brown & Co., 1879), p. 538.

T

CHAPTER III.

OF CONSTITUTIONS.

§ 63. THE function of the Constitutional Convention being, as we have seen, to participate in the framing or amending of Constitutions, before attempting to ascertain the extent of its powers in that regard, it is necessary to form an accurate conception of what a Constitution is.

By the Constitution of a commonwealth is meant, primarily, its make-up as a political organism; that special adjustment of instrumentalities, powers, and functions, by which its form and operation are determined.

This is a Constitution, considered as the outcome of social and political forces in history, as an organic growth, or, as I shall sometimes describe it, as a fact.

Beside this, the term "Constitution" has a secondary mean. ing, which is, perhaps, more common than the one given, involving equally the conception of a system of political instrumentalities, powers, and functions, specially adjusted for the purposes of government; but conceived of, not as an organic growth, but as a systematic description of such a growth, in the shape of formula addressed to the understanding. In other words, a Constitution, in this secondary sense, is the result of an attempt to represent in technical language some particular constitution. existing as an organic growth. This is a Constitution considered as an instrument of evidence.1

1 Since this part of the text was written, I have been pleased to find that substantially the same distinction here noted, between Constitutions as organic. growths and Constitutions as instruments of evidence, has been taken in two works lately published; that of Mr. Hurd, On the Law of Freedom and Bondage, and that of Dr. Brownson, The American Republic. The latter author

says:

written and unwritten,

"The Constitution of the United States is twofold, -the constitution of the people, and the constitution of the government. The written constitution is simply a law ordained by the nation or people instituting and organizing the government; the unwritten constitution is the real or actual constitution of the people as a state or sovereign community, and constituting them such or such a state. It is providential, not made by the nation, but born