purely conventional (39). Noticing that in some states those who were originally allowed to vote had been by the constitution divested of the power, he said: "We presume the lawmakers considered that they were not discreet persons to be intrusted with the ballot" (40). The electors, as an actual fact, as a practical fact, as a legal fact, are the agents and representatives of the people (41).

§ 139. The new meaning of sovereignty. There are jurists of high standing who insist that sovereignty does not mean anything in America, and should be dropped from our legal nomenclature, but it is not the province of an author to dictate what our nomenclature shall be. A text-writer must take the terms of the law as found in daily use in judicial arguments, and his humble province is to ascertain and explain, as near as may be, the sense in which the term is appropriately used.

Sovereignty, like many other words which have come to us from other days, has changed with the development of the law, and the idea associated with the use of the word is not at all synonymous or even analogous to the old idea which the word represented. Even so, this word "sovereignty" in American law, though not found in the constitution (42), has been in constant and daily use in American law, but is dissociated from both the ideas

39 Blair v. Ridgley, 41 Mo. 63. See this question exhaustively examined in a note by the author, 2 Wilson's Works, 566. Also McCrary on Elections, supra.

40 Blair v. Ridgley, 41 Mo. 63.

41 Jameson on Const. Conv., pp. 324, 331-333, 335, 337, 352, 354; Pomeroy, Const. Law, pp. 5-28; Penhallow v. Doane, 3 Dall, 54.

42 See Chisholm v. Georgia, 2 Dall. 219.

which it bore in the English law at the time of the Revolution. Sovereignty does not mean unlimited, absolute power, nor does it mean personal authority; but sovereignty, when properly applied to the people of the United States as a political entity, may properly, in a guarded sense, mean personal superiority; that is, that there is a public person from which all power emanates, than whose will there can be not other superior authority (43).

The people are sovereign in the limited sense that there is no external power which can be recognized as having authority over them, and likewise there can be no internal tribunal with inherent powers, that is, powers not granted by the people, which can have jurisdiction over them. Therefore, there having been no judicial tribunal created by the constitution with express jurisdiction of a suit against the United States, the doctrine naturally followed, not because of any analogy between the people and the king of Great Britain, not because the people cannot be bound by the obligations of a law, but because they have not seen fit to invest any such tribunal with such power (44).

Doubtless the word has had a bad effect upon American law, and, because of its evil associations and improper use, it had been well had the same silence been observed by the lawyers which was observed by the people in the constitution (45)

48 Bouvier's Institutes, §§ 13, 149, 150, 182. See Downs v. Bidwell, 182 U. S. 244, at p. 359.

44 Martin v. Hunter, 1 Wheat, 304, 329. See note, 136 U. S. 606; Marbury v. Madison, 1 Cranch, 137.

45 Bliss on Sov. 175; Smith's Right & Law, §§ 508-22.

§ 140. The method by which the people bound themselves. We may now safely affirm that the sovereignty of the people consisted in this: that being originally equal in rights and without any superior, they had a right to establish any form of government upon any terms they could agree upon. That without violating the ancient principle that government derived its just powers from the consent of the governed, no majority had the right to coerce the minority.

Second. That it was competent for them, by the terms of the constitution, to agree upon the manner in which all power should be exercised, and that all jointly, or any portion of them, should have no right to change the fundamental law in any manner other than by the modes therein provided (46).

Third. That they did so agree and did set plain limitations upon the exercise of all power by themselves, as well as by those to whom they delegated the exercise of the government, and did agree upon the republican principle that the people cannot act en masse, but must act through representatives. That they, by their constitution, created the judicial power independent of and coordinate with the legislative branch, and clothed with a power and duty unknown (47) to governments where sovereignty was recognized-namely: to declare null and void any acts of the people, whether exercised through their electors or by the legislatures, or the executive, or

40 Marbury v. Madison, 1 Cranch, 137.

47 Cohen v. Virginia, 6 Wheat. 264; Cooley, Const. Lim. 58, notes; Marbury v. Madison, 1 Cranch, 137; Justice Field's Address, 134 U. s. (App.) 737.

by all combined, which contravene the fundamental law; and finally, they have declared the constitution to be the supreme law of the land, and binding upon all individuals, bodies politic, magistrates or agents (48).

§ 141. Government of law established. We may summarize the following acts of the people destructive of the then existing notions of sovereignty as evidenced by their constitutional documents. They abolished rank and established equality. They limited power and the manner of its exercise. They created a tribunal with power to define the limits of right and interpret, construe, expound and apply the law, whose duty it is to declare void acts contrary to the constitution. They abolished personal allegiance and substituted an oath of citizenship to obey and support the constitution and enforce the law (49). The supreme object is declared to be to establish justice and secure the blessings of liberty, to the end that this may be a government of laws and not of men (50).

The chief principle now firmly established by the constitution (51) is an equality in rights and in obligations, wherein is exhibited that jus aequum, that equal law, in which the Romans placed true freedom (52). Very apt is the illustration taken from the custom of the Spaniards of Arragon, who, when they elect a king, introduce

48 "The constitution," says Justice Davis, "is a law for rulers and people equally in war and in peace, and covers with the shield of its protection all classes of men at all times and under all circumstances." Ex parte Milligan, 4 Wall. 120.

49 State v. McCready, 2 Hill (S. C.), 1.

50 Mass. Dec. of Rights; Marbury v. Madison, 1 Cranch, 163.

51 Fourteenth Amendment.

52 Wilson's Works, 308. See Santa Clara Co. v. Railway Co., 18 Fed. Rep. 398; Connolly v. Union Sewer Pipe Co., 184 U. S. 540-60.

as in a play a personage whom they dignify by the name of law-"La Justiza of Arragon." This personage they declare, by public decree, to be greater and more powerful than their king (53).

§ 142. The fundamental principles of self-government. But one conclusion can be drawn from the facts surrounding the institution of this government and the experience of the century upon the question of the nature of the power of legislation, whether in the people or elsewhere, and in relation to the nature of law and the doctrine of unlimited power. The result is the destruction of personal sovereignty in the many or the few, and the substitution of the obligation of consent as the vital principle of law. Whether it consists in the plighted faith of the nation by way of treaty, the behest or limitation of a constitution, a statute duly enacted, or a system universally adopted, they are all, in truth and form, of the people, by the people, for the people, -the actual application of the theory of self-government.

The crowning achievement of our ancestors was the subordination of all powers to the supremacy of the law. The conception of an independent tribunal, with the untried and far-reaching power of nullifying acts of other departments of government, is the best proof of the scope of their wisdom and the strength and boldness of their purpose (54). The events of intervening history

53 See infra. note 54.

54 It is not quite fair to affirm that the expedient of a judicial tribunal with power to declare void acts of other departments was entirely unknown. In his opinion in Chisholm v. Ga., 2 Dall, 460, Justice Wilson calls attention to a former experiment. Dr. Robertson, the fa