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.

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 formulæ 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:

"The Constitution of the United States is twofold, written and unwritten, -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

§ 64. A third variety of Constitutions, so-called, may be noted, but only to exclude them from the list of legitimate Constitutions, that is, Constitutions "as they ought to be." These must be carefully distinguished from Constitutions considered as organic growths. They are Constitutions framed in the closet, according to abstract ideas of moral perfection, for imaginary commonwealths. Of this class are the instruments thrown off in such numbers by the constitution-mongers of France, during her great democratic revolutions, and those hardly more unsubstantial ones framed by Plato, More, Bacon, and Harrington for their ideal republics.

As contrasted with these, the Constitution considered as an organic growth, is that Constitution which has actually, under the operation of social and political forces, evolved itself in a State. This Constitution may differ much from that inscribed in the volume of the laws. Thus, there may have been wrought out fundamental changes in the structure of a government by the usurpations of its functionaries, fellowed by the acquiescence of the sovereign society; in which case, those changes would become a part of the Constitution as a fact. The usurpations, having this effect, might or might not have been intentional. The purchase of Louisiana, admitted by Mr. Jefferson, who effected it, to have been an unconstitutional act, may be cited as an instance of an usurpation resulting in important constitutional modifications, which was committed intentionally, because of its supposed great benefit to the country.1 It is the opinion of many lawyers, that State banks of issue are unconstitutional. Admitting that they are so, but that, when first authorized, they were believed to be within the scope of State legislative power, and conceding that they are now so firmly established as to be practically irrepealable, they would present an illustration of an unintended usurpation, ripening by long acquiescence into a change of the Constitution as a fact. Similar changes might arise, in the course of the national progress, from the growth of opinion, or from some general but gradual organic movement of the society at large, of importance so fundamental that they must be set down as modifications of the with it. The written constitution is made and ordained by the sovereign power, and presupposes that power as already existing and constituted." The American Republic, p. 218.

1 See Jefferson's Works, Vol. IV. pp. 504-506.