in the writings of a century ago, and were then great and practical questions, having for their object the determination of what was the true basis and origin of government, that is, whether the right of administration of laws or the right of kingship or the right of government was of divine origin, or whether all civil government was an invention of man and was based upon the consent of the governed, or, to put it otherwise, whether the government was superior to the man (29).

§ 99. Society, natural and civil. We have been told that there was an original and natural state of society antedating civil society by which we mean an association of individuals united by common consent for a common purpose, ordinarily for the protection of private rights (30); but it is apprehended that as near an approach to the state of natural society discoverable, or in fact worthy of investigation, is found in the condition of the Indian tribes which inhabited America at the time of its settlement by our ancestors, and who are presumably held together by the natural ties of a common ancestry.

Questions relating to title and to real property, and claims by or in behalf of Indian tribes or members thereof, or citizens of the Union living among the Indians, have elicited several careful and able discussions of the state of society among the Indians which may be noticed hereafter. A mere citation will here suffice (31).

29 Chisholm v. Georgia, 2 Dall. 463.

30 Declaration of Independence.

31 Johnson, Lessee, v. McIntosh, 8 Wheat. 543; Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 512. Cherokee Nation v. S. K. Ry. Co., 135 U. S. 641.

§ 100. The people. Before treating the several public persons in detail it will be useful to here consider concisely all the various persons. By thus examining them in close connection and obtaining a slight prenotion of each, we may be able the more easily to perceive the distinguishing features of each. We will briefly outline what is meant by the people, state, government, and citizen (32).

The word "people" means a body of persons regarded collectively. "The people," using the term in its proper legal acceptation, means the whole mass of male and female citizens, and this mass or body constitutes the political unit (33).

But in the constitution the word "people" is often used where the whole unit is not intended, but individuals are meant; thus, in the Bill of Rights, in all provisions in reference to seizures and searches, jury trial, right to assemble, in fact, in all reference to personal liberty.

§ 101. Government, magistrates, officers. Government is that organization to which the exercise of political powers is intrusted. It is the political system created by the agreement of the people, evidenced by the constitution or fundamental law. Government is not sovereign. "The sovereignty of the government is an idea belonging to the other side of the Atlantic" (34). The departments of government simply exercise delegated powers

32 Downs v. Bidwell, 182 U. S. 244.

33 McCrary on Election (4th ed.), § 13.

34 Webster's Reply to Calhoun on the Foote Resolution.

as the agents of the people (35). The government manifests itself in various forms of magistracy. These magistrates are officers; they have no personal powers, dignities or preeminences-nothing but official. The government nor any branch of it has any political rights of its own; it simply represents others who have. The constitution makes a plain distinction between the people and the government (36). The citizens are private persons, either individuals or private corporations, although the latter have no political rights.

§ 102. Double meaning of state. A state, using the expression in its broadest political sense, as nation-as the community organized under a constitution and exercising its constitutional powers-includes all persons, citizens, the people and the magistrate (37). Thus we say citizens, meaning individuals which compose the state; the people of a state, meaning the body in whom the right of government inheres; the government, meaning those magistrates to whom is delegated the power to administer the law. The people collectively constitute a person -a body politic, possessing rights, affairs, duties and property; but you cannot say of the government—that is, the legislature of the state, the executive of the state, or the judiciary of the state, or of the three combined-that they constitute a person (38), although, as magistrates, each officer has legal personality. The greatest person

35 Lane Co. v. Oregon, 7 Wall. 71-76; White v. Hart, 13 Wall. 650;

2 Sharswood's Blk. 47, note.

86 Texas v. White, 7 Wall. 700-721.

87 State v. Young, 29 Minn. 536; Jameson on Const. Con. 15.

88 State v. Young, 29 Minn. 536.

of the trinity is doubtless the people, for it is the body politic of the state. But the most important person is the individual. Thus we say government is made for man. The chief end and purpose of government is the protection of private rights (39). By naming one part less than that whole (40) you do not express the full meaning of the state, but altogether they constitute that glorious fabric of which philosophers delight to speak under the designation of a state (41).

"A state, however," says Chief Justice Chase, "in the ordinary sense of the constitution, is a political community of free citizens occupying a territory of definite bounds and organized under a government sanctioned and limited by a written constitution and established by the consent of the governed." The picture cannot be exhibited in clearer light than by using the language used by him. "It is the union of such states under a common constitution which forms the distinct and greater political unit which the constitution designates as the United States, and makes of the people and states which compose it one people and one country." And it is in this sense in which he used the expression, "The constitution in all its provisions looks to an indestructible Union composed of indestructible states" (42).

39 Wynehamer v. Peo. 13 N. Y.

40 Penhallow v. Doane, 8 Dall. 93.

41 Texas v. White, 8 Wall. 721; Penhallow v. Doane, 3 Dall. 98. 42 "All the rights of the states as independent nations were surrendered to the United States. The states are not nations, either as between themselves or towards foreign nations. They are sovereign within their spheres, but their sovereignty stops short of nationality. Their political status at home and abroad is that of states in the United States. They can neither make war or peace without the consent

"The word 'state' has a meaning peculiar to the United States. It means a certain political society forming a constituent part of the Union. There can be no state unless it be entitled to a representation in the senate. It must have its separate executive, legislative and judicial powers" (43).

§ 103. Complexity of the state and national system. The ordinary citizen and the casual observer as he daily sees the peaceful working of our governmental system, developed by the experience and study of a century, has no occasion to notice the exceeding complexity of the system of laws under which we live. But in fact the American system of government is the most complex that the history of mankind presents (44).

"Our country exhibits the extraordinary spectacle of distinct, and in many respects independent, governments over the same territory and the same people" (45); but, to make the anomaly striking, those functions which are

of the national government. Neither can they, except with like consent, ‘enter into any agreement or compact with another state.' Art. 1, sec. 10. cl. 3." New Hampshire v. Louisiana, New York v. Louisiana, 108 U. S. 90.

43 Hepburn et al. v. Ellzey, 2 Cranch, 445.

44 Bryce, Am. Con., vol. 1, part 1, p. 14. Mr. Bryce observes: "The casual reader of American political intelligence in European newspapers is not struck by this phenomenon, because state politics and state affairs generally are seldom noticed in Europe. Even the traveler who visits America does not realize its importance, because the things that meet his eye are superficially similar all over the continent, and that which Europeans call the machinery of government is in America conspicuous chiefly by its absence. But a due comprehension of this double organization is the first and indispensable step to the comprehension of American institutions; as the elaborate devices whereby the two systems of government are kept from clashing are the most curious subjects of study which those institutions present.

45 Ogden v. Saunders, 12 Wheat, 350.