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legal and constitutional right to recall the delegation; such recall, when made, must be extra-legal, or extra-constitutional, or, in other words, revolutionary. How far this is true in our own country, will be considered in the sequel. The common expression referred to is, however, theoretically incorrect; in strictness it should be said that these persons are entrusted with and wield the sovereign power.1

It is this delegation by the totality of the function of exercising the sovereign power, which creates the necessity of establishing a fixed rule to which the depositaries of this power -the various orders of actors in the government-ought to conform in their relations with other members of the state; or, in other words, there thence arises the possibility of a constitution in a juridical sense of the term. As a consequence, a governmental power, not possessing sovereignty in itself, but only wielding it by delegation, cannot, according to the very conception of its existence, be unlimited, absolute; although it is not indispensable that the rules which restrain it should be formally expressed. In the United States, these rules are formally expressed; in England, they are not. That which we call an unlimited, absolute government is so in appearance only it is one whose acts, for the time being, do not depend for their validity upon any open expression of assent by the people, or by their direct representatives. The government, on the other hand, which we usually call limited, is one that is subjected to this dependence.

§ 10. This brief analysis of the nature and mode of exercise of that sovereign power which is the essence of a state, will enable us definitely to fix the limits of the department of jurisprudence called Political Law. That department must be concerned with the extent, manner, and means of the exer

1 See Jameson, The Constitutional Convention, chap. ii. §§ 21-24. See, also, Austin, Lectures on Jurisprudence, Vol. 1, Lect. VI. Austin seems to me to have fallen into grave errors while discussing this whole subject. He either too much narrows the meaning of the term sovereign power, and confounds it with the mere capacity to exercise that power according to the constituted order of things in a particular state; or else he utterly ignores the idea that sovereignty resides in the totality of members of a state as a political unit.

cise of sovereign power, so far as this exercise is confined to the interior relations of the state. The complete theory of these interior relations has a triple object: First, the fundamental organization of the whole of the relations which subsist between the government and the people; secondly, the established order of the functions by which the action of the political power with respect to the people may be carried on ; thirdly, the manner of procuring the means and physical forces which the action of the government demands. This theory in its entirety is called Political Law. In a strict sense, therefore, Political Law is the science which investigates and describes the form and constitution of the state, and which consequently responds to the three following questions: 1st. In whose hands is placed the exercise of the sovereign power? 2d. To what laws is this exercise subjected? 3d. By what means and combinations is the observance of these laws assured?

§ 11. The actual constitutions of states have been, and are, exceedingly varied; and the political forms commonly admitted — democracy, aristocracy, and monarchy - do not express all the differences which appear in fact, because they refer only to the number of persons who exercise the power, and not at all to their juridical relations. Thus the government of our own country cannot with accuracy be referred to either of these divisions as they are commonly understood. It is certainly not a democracy; and, although not in outward form an aristocracy or a monarchy, it is subjected to the same limitations in kind, but far greater in degree, as those which are usually placed upon the latter species of government. Indeed, Austin, with theoretical correctness, ranges limited monarchies and representative republics under the head of aristocracies.1 In those constitutional forms of government only which may be essentially referred to the group of aristocracies, or to that of monarchies, can there be any question of a law which limits the political power, and consequently of means and combinations to ensure the maintenance of this law. In a pure democracy, such a law is simply impossible; for, as the totality

1 Lectures on Jurisprudence, Vol. 1, pp. 191-200, Lect. VI.

in whom alone resides sovereign power also wield that power directly, they can only be self-restrained in its exercise: no law can be imposed upon the acts of a sovereign.1 In fact, the recognition of a fundamental limitive law has ordinarily resulted in the selection of a body, more or less numerous, which represents the people. But, as we have seen, the action of this body cannot imply a participation by it, as such representative body, in the sovereign power. The true import of this form of organization is, that the exercise of certain rights of sovereignty legislation or administration, or both subordinated to the assent of these representatives.

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§ 12. Political Law, as thus described, is finally divided. into General, which presents the theory of the state in general; and Special, which confines itself to the constitution of a particular state. In the same manner, the science of Jurisprudence itself, of which Political Law is a part, is separated into General, which treats of positive law in the abstract; and Special, which is occupied with the entire municipal law of some determinate nation.

§ 13. The object of the present work is the investigation of Political Law in one of its special forms, that of our own country, the Constitution of the United States of America. As the People of the United States, the possessors of sover eign power, have arranged their governmental relations by intrusting the management of a portion to the central national government, and another portion to the governments of the respective states, an exhaustive treatment of the subject would require that I should separately examine not only the Constitution of the United States, but also that of each state. Thus only should we ascertain the entire scope of those juridi cal relations which subsist between the whole people and their

1 Austin is certainly correct in his proposition that the sovereign cannot be compelled by law; his error is in determining who is the sovereign. Were his positions true, the result would be inevitable that, in the United States, there was absolutely no sovereign; for all classes of rulers, national and state, are limited by precepts which have all the attributes of positive law; and if the people, in whose name these commands are assumed to be uttered, be not the sovereign, we have none. Indeed, Austin seems practically to be driven to this conclusion.

government. But this method of treatment cannot conveniently be pursued. I shall confine myself to the Constitution of the United States as a unit, and shall refer to the state constitutions so far only as they may be implicated with the national government. I shall inquire within what sphere the state governments may legitimately act, but farther than this cannot go. What action has been taken by the inhabitants of a particular commonwealth must be ascertained by the student of local law.

§ 14. The plan adopted for the present work does not require, nor even permit, me to enter at large into the field of General Political Law. Any extended inquiry into the nature of the state and of government in the abstract, into the advantages or disadvantages of particular forms, or even into the merits or demerits of special portions of our own Constitution, would be out of place, and will not be attempted. This work is not intended to be a treatise on civil polity. But the investigation of our established order, and the interpretation of doubtful clauses in the organic law, will require some reference to these more general topics. So far as may be necessary for these purposes, and as incidental to the general design, such reference will therefore be made. There are invaluable treatises upon General Political Law, to which the student may be referred; and it seems both unnecessary and inexpedient to combine the two methods of discussion-the abstract and the special in a single work, any farther than may be useful for explanation and illustration.

But there is another and stronger reason why arguments to convince us of the suitableness or unsuitableness of the whole plan, or of any essential feature of it, are unnecessary. The nation has passed the point in its history when any other scheme could be possible. The general form of our government, and all of its important elements, are fixed. They were deliberately and finally chosen after a discussion which surpassed in fulness and ability any other that had ever been presented to a people as an aid to their decision. Before the adoption of the Constitution, such a scrutiny was indispensable. An appeal was made to the fundamental principles of

government; the merits of various grants and limitations of power, and of various forms of organization, were carefully canvassed. The question presented was, Why should we, the People of the United States, choose this proposed scheme of government? The publications of the day, and especially the collection of letters known as the Federalist, contain an answer to this inquiry. But now this Constitution is fixed; no one thinks of substituting in its place any new or different form of government; no one suggests any fundamental, or even important, change in its detail. By it the nation must stand or fall. The citizen knows its excellencies and its weaknesses, its capacities and its omissions. Such as it is, it must continue to be our organic law.

This Constitution being thus accepted as a fact, and universally regarded as substantially permanent, neither the educated citizen nor the professional student needs to ask, with much solicitude, whether any particular clause is better or worse than some other which might have been incorporated in the instrument; he needs to inquire what is the meaning of this clause, and what powers does it confer or limit, and how does it affect the relations between the government and the members of the body politic. All the aids which the canons of verbal interpretation, or history, or analogies with other forms, or ethics, can contribute to the correct determination of this all-important question, may be freely used; indeed, an answer is often impossible without a resort to some or all of them. There can be no doubt that the People are strongly convinced of the excellency of their organic law; that they will not yield their convictions to the demands of any theorizers; and that they will suffer no amendments except those which shall more completely carry out the ideas upon which the whole is based, which shall supply some omission, or correct some inadvertency. I repeat, the Constitution as a whole must stand. I believe that nothing but external violence can overturn it; no voluntary act of the people will displace that accustomed order which has proved to them so beneficent.

§ 15. Leaving, therefore, the branch of General Political Law, the general ideas of government and of Civil Polity, to

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