declared or commonly called the government are not sovereign. The people have not delegated the sovereignty itself to any one; they have rather destroyed the old idea of sovereignty. The constitution, together with treaties made under it and laws passed in conformity with it, are the supreme law of the land, and, as the words imply, there is no higher power (46). Certain officers are elected with authority over certain subjects throughout the whole domain of the nation. For other purposes, territorial limits exist, the people of which constitute a body politic, and this person (the state) exercises its power through officers appointed with power to do everything not delegated to federal officers or not reserved to the people.

The chief difference between the power of the United States and the state consists not in the manner of their creation or operation, but in the objects of control or jurisdiction for each exercises only delegated power; in the former the objects of government are enumerated, in the states these objects extend to everything not expressly or impliedly limited by the limitations of the state constitution and what has been granted to the national government. Both exercise delegated powers as agents of the people (47). This, with the constitutional adjustment of the judicial power, independent of, separate from and co-ordinate with the legislative and executive departments, and clothed with the authority to declare void and

46 State v. Peel Splint Coal Co., 36 W. Va. 802; 17 L. R. A. 3S7; White v. Hart, 13 Wall. 650.

47 McCullough v. Maryland, 4 Wheat. 410; Chisholm v. Georgia. 2 Dall. 419.

of noneffect all acts of legislation, from whatever source emanating, which contravene the provisions of the federal or the state constitutions, present the unique and striking features of the American constitution (48), the adoption of which, was in its day, regarded a prodigy.

48 State v. Peel Splint Coal Co., 36 W. Va. 802; 17 L. R. A. 387.

CHAPTER VIII.

THE PEOPLE.

§ 104. The people: Identity. In the United States the people are brought on the stage as an acting political entity, acting, it is true, always through representatives. As expressed by Wilson, one of the signers of the Declaration of Independence: "In free states the people form an artificial person or body politic, the highest and noblest that can be known” (1).

By "the people" of a state is meant all of the members which compose that state and are integral parts of it, together making a body politic (2).

"The people as a corporate unit form an artificial person or body politic; thus constituted they form a moral person" (3). "It is this person we call a state" (4). "There is no distinction between the people and the state" (5).

It must not be forgotten that, in using the expression "the people," there is a distinction between the population of the nation, as individuals, and the same popula

12 Wilson's Works, 6.

2 Penhallow v. Doane, 3 Dall. 55, 93; Wells v. Bain, 75 Pa. St. 39; Scott (Dred) v. Sanford, 19 How. 393.

8 Keith v. Clark, 97 U. S. 460; 2 Wilson's Works, 321.

41 Wilson's Works, 321-25; 2 Wilson's Works, 6.

6 Penhallow v. Doane, 3 Dall. 93.

tion organized under a constitution. By "the people," in this connection, we intend a body politic, a corporate unity. Because of the quality of singleness we may properly use the pronoun "it," though, this is not usual. It is hard for the citizen to lose sight of the individuals in the body; but correctly viewed, as drops of water lose their forms as drops when they mingle with the whole and become not drops, but one body, even so the citizen in his political capacity loses the civil capacity of an individual when viewed as a part of that great unit "the people."

It is the whole mass, and not a majority of the individuals composing it, which constitutes the people, and the people are to be regarded, not as an unorganized mob, but as a corporate unity composing a society (6). There

• Jameson, Const. Con. (4th ed.), pp. 18, 19, notes: Von Holst's Con. Law, 48, 49; Penhallow v. Doane, 3 Dall. 92.

"A distinction was taken at the bar between a state and the people of the state. It is a distinction I am not capable of comprehending. By a state forming a republic (speaking of it as a moral person), I do not mean the legislature of the state, the executive of the state, or the judiciary, but all the citizens who compose the state, and are, if I may so express myself, integral parts of it; all together forming a body politic. The great distinction between monarchies and republics (at least our republic) in general is, that in the former the monarch is considered as the sovereign, and each individual of his nation as a subject to him, though in some countries with many important special limitations. This, I say, is generally the case, for it has not been so universally. But in a republic, all the citizens as such, are equal, and no citizen can rightfully exercise any authority over another but in virtue of a power constitutionally given by the whole community, and such authority, when exercised, is in effect an act of the whole community, which forms such body politic. In such governments, therefore, the sovereignty resides in the great body of the people, but it resides in them not as so many distinct individuals, but in their political capacity only. Thus A., B., C. and D. are citizens of Pennsylvania, and as such, together with all the citizens of Pennsylvania, share in the

are dicta to the effect that the people, when spoken of in the political sense, means only those persons having the right to vote, that is, the electors; and it is at the same time said that in the electors is vested the sovereignty (7). Thus stated, the idea does not, as we shall see, properly obtain, and is contrary to the principles of American institutions (8). Voters are but parts of the machinery of government (9). In the constitution "the people" is sometimes used to indicate persons or individuals. So in all provisions in reference to unreasonable seizures and searches. In such provision it is identical with the use in Blackstone.

§ 105. Capacity. Power. Sovereignty. We may now examine the powers of the people, and in the course of this examination but little time need be spent upon theory or metaphysical discussion of what ought to be the law governing the matter, but will, as far as possible, be confined to the practical, visible facts.

The discussion of the capacities of that person we term "the people" necessarily involves the discussion of what is termed sovereignty. Let no one suppose that this question is an impracticable one and that it has no further

sovereignty of the state. Suppose a state to consist exactly of the number of 100,000 citizens, and it were practicable for them all to assemble at one time and in one place, and that 99,999 did actually assemble. The state would not be in fact assembled. Why? Because the state in fact is composed of all the citizens, not of a part only, however large the part may be, and one is wanting." Penhallow v. Doane, 3 Dall. 93.

7 Cooley's Const. Lim. 40, citing Blair v. Ridgely, 41 Mo. 63; 97 Am. Dec. 248.

8 2 Wilson's Works, App'x A, p. 566; McCrary on Elections (4th ed.), sec. 13.

State v. Cunningham, 81 Wis. 498.