value than the theoretical or metaphysical, or a display of mental acrobatics or ingenuity; for it will be seen that the question is one which lately, on several important occasions, has been the only discussion indulged in for the determination of great cases in court, and is liable to arise as a practical question at any time.

The discussion of the "sovereignty of the people," a term so often used, and we might say so much abused, involves the very foundation prinicple of this govern

ment.

There are two methods of discussing sovereignty: one the theoretical, star-gazing, phantom-chasing quests; another the practical, which consists in nothing more or less than determining what acts the alleged sovereign can legally perform. Thus Hale and Blackstone show us what the king and parliament had the legal right to do in the time of each, respectively, and by the changes in legal power the sovereignty is seen to change from the king, in the time of the former, to parliament in the day of the latter (10). The course of the inquiry will be to determine, first, the nature of sovereignty; second, its existence in our jurisprudence.

§ 106. Early idea of sovereignty in English law. The question must be examined in the light of our own constitutional history, and the references made to English history are for the purpose of illustrating precisely the changes made by our ancestors, who established our present constitution.

To fully appreciate the idea of sovereignty and the

10 Const. Hist. Am. Law. 32.

changes which have taken place in the meaning of the word since its introduction in England upon feudal principles, we should go back so far at least as the time of Lord Bacon and Lord Hale (11).

The brief summary given in the note discloses that the parliament was originally treated as occupying a subordinate capacity as an advisory council of the king, while the jura summi imperii, which Blackstone calls the right of sovereignty, is not treated as residing anywhere else but as an attribute of the king's person-he has the jura majestatis, vel summi imperii, or the right of dominion, and the potestas jurisdictionis, vel mixti imperii, that is,

11 Section Three of Hale's Analysis is entitled "Of such rights as relate to the king's person." Under this he speaks of the king thus: "Then, as to his natural capacity, as he is king; the great concerns of government requiring a great assistance to the king's natural capacity, the laws and customs of the kingdoms have furnished him with divers assisting councils, which are of two kinds, viz. (to abbreviate): ordinary and extraordinary councils. The ordinary council consists of privy council, council at law (the lord chancellor, etc.). This court had jurisdiction of appeals from the colonies. [See The Sarah, 8 Wheat. 396, note; Penn v. Lord Baltimore, 1 Ves. 444.] His extraordinary councils are two-secular and ecclesiastical. The secular councils are the house of peers and house of commons."

"Section Four, concerning the prerogatives of the king. Having shown you what rights belong to the king's person (the parliament being the council of the king), we come now to those rights which concern his prerogatives, namely: Jura majestatis, vel summi imperii, that is, the right of dominion; potestas jurisdictionis vel mixti imperii, that is, the power of jurisdiction.

Section Five, concerning the Jura summa majestatis, or rights of the king's empire or dominion.

"Section Six. of the potestas jurisdictionis, or the king's right or power of jurisdiction. Hitherto of the fura summi imperii, or rights of empire or dominion; now we come to the pura mixti imperi or potestas jurisdictionis, wherein the king generally acts by his delegates, officers or representatives." Hale's Analysis.

the power of jurisdiction (12). The central idea is that, while the king has this sovereign power over his subjects, there is no legal power to control him; he was natural ruler, and all charters of liberty take the form of grants from the crown, confirmed by parliament. "When a government," says Judge Cooley, "grants a constitution, it remains supreme over it" (13).

§ 107. The divided sovereignty of Blackstone's time. Between the time of Hale and Blackstone great changes took place. The convention parliament denied that the king was the natural lord, destroying forever the doctrine of divine right. Therefore Blackstone says, "the law ascribed to the king certain attributes of a great and transcedent nature, by which the people are led to consider him in the light of a superior being, and pay him that awful respect which may enable him, with greater ease, to carry on the business of government." "This," he says, "is what I understand to be the royal dignity, the several branches of which we will now proceed to examine." First, the law ascribed to the king the attribute of sovereignty or pre-eminence (14), and all subjects owed to him allegiance, which was a personal feudal tie. Thus, a single personal sovereignty is retained, but the jura summi imperii, or the supreme power, is transferred from the king to the parliament, whereby parliament is raised up as the supreme power (15) of the kingdom (16),

12 See also 1 Blk. Com. 237.

18 Con. Hist. Am. Law, p. 31.

141 Cooley's Blk. 241.

15 Con. Hist. Am. Law, 33.

181 Cooley's Blk. 153.

whereof the king was a constituent part, and this unit, parliament being a body corporate, is invested with supreme, irresistible, absolute, uncontrolled authority (17). "For to set bounds is to distrust and destroy, and the law being incapable of distrusting those whom it has invested with any part of the supreme power, since such distrust would render the exercise of that power precarious and impracticable, for wherever the law expresses its distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it, the very notion of which destroys the idea of sovereignty" (18).

Thus we see the modern English sovereignty in an omnipotent parliament without any judge upon earth to define its powers, which are without limit, because, (19) it is said, to set limits against the abuse of power destroys the idea of sovereignty (20).

In that day the limitations upon the king's prerogative were certain and numerous (21).

The privileges and powers of parliament were uncertain and indefinite as well as unlimited (22).

17 Id. 49. See Cooley's notes.

181 Cooley's Blk. 244.

191 Blk. 48.

20 Id. 244.

21 Id. 141, 233, 237; Miller on Constitution, 67, note.

22 1 Blk. 163-64. This view of Blackstone was not generally accepted by the English people. The following view of Junius is nearer to a just conception: "The power of king, lords and commons is not an arbitrary power; they are the trustees, and not the owners, of the estate. The fee simple is in us; they cannot alienate; they cannot waste. When we say that the legislature is supreme, we mean that it is the highest power known to the constitution; that it is the highest, in comparison with the other subordinate powers, established by the laws. In this sense the word 'supreme' is relative, not absolute. The power of the legislature is limited, not only by the general rules

§ 108. Effect of declaring equality. From the premises furnished by this statement from Blackstone's treatment of English law, we may now ask the question

When inequalities of rank are destroyed, and plainly defined bounds are set upon the power of legislation, and an independent tribunal created which has jurisdiction at the instance of an individual (23) to annul an act of the legislative body and to keep all power within the defined limits, is not sovereignty destroyed?

It will be admitted by all that sovereignty is not recognized in American law in the same sense in which it was said to exist under the English constitution, for it there existed as a right, a substantial right, an absolute right in a corporate body, a person, i. e., parliament.

Strange as it seems, allegiance was not due to the person possessed with the supreme power in the state. It is apparent, therefore, that in the English system sovereignty was not synonymous with the supreme power in the state; that the former was a limited power; the latter absolute and unlimited.

The king was a sovereign in the sense that all citizens of all ranks were subject to him and owed allegiance, not to the people of England, not to the laws of parliament, but to the person of the king (24).

of natural justice and the welfare of the community, but by the forms and the principles of our particular constitution. If this doctrine be not true, we must admit that kings, lords and commons have no rule to direct their resolutions, but merely their own will and pleasure; they might unite the legislative and executive power in the same hands and dissolve the constitution by an act of parliament." Woodfall's Junius, pp. vi, vii. See also Stockdale v. Hansard, [1839] 9 Ad. & El. 1; 36 E. C. L. 1.

28 Inglis v. Trustee, 3 Pet. 158; Marbury v. Madison, 1 Cranch, 137. 24 Inglis v. Trustee, 3 Pet. 158.