diction or control of any higher authority, was destroyed or given up by entering into the Union, and it is settled law that a state may be sued in a United States court. From this fact alone, it follows that if the obligation to submit to a tribunal not created by itself is inconsistent with sovereignty, then a sate is not, in that sense, sovereign (7). It was decided by the supreme court that the people of the United States had the power to create and had created a tribunal having jurisdiction over a state at the suit of an individual (8).

Although that suit was one against a state by a citizen of another state, it is now settled that it is immaterial whether the citizen suing is a resident or a non-resident of the state sued (9). That according to the letter of the constitution, a state might be sued by an individual is admitted by all (10), but by the eleventh amendment, the courts are prohibited from so construing the constitution; the provision being that the constitution must not be construed as giving jurisdiction to the United States courts over a suit by a citizen against a state (11).

§ 132. A state cannot be sued by an individual except by consent. The decisions have been uniform that a state cannot be sued in any court by an individual without its consent (12). The attempts to invent reasons other than the letter of the law have been uniformly lame. The

7N. H. v. La., 108 U. S. 7.

8 Chisholm v. Georgia, 2 Dall. 416.

9 Hans v. Louisiana, 134 U. S. 1.

10 Baldwin's Views, 11 Pet. (App.) 19.

11 Infra, § 132.

12 Hans v. Louisiana, 134 U. S. 1; State v. Young, 29 Minn. 509; N. Dak. v. N. C., 192 U. S. 286; N. H. v. La., 108 U. S. 76.

federal court has appellate jurisdiction of a suit by a state against an individual (13). The palpable injustice of the rule has led to several ingenious devices to avoid its application (14). Such for example as the assignment of the cause of action to a person competent to sue, (e. g. a state), which, however, must be a real assignment (15). The sufficient reason for the rule is found in the expression, "it is the written law," the motive for it throws no light on its application (16).

§ 133. An individual contracts with a state at his peril. It is now well settled that there is no judicial remedy in favor of an individual against a state to compel the performance of a contract (17), though it is settled that a state can pass no law impairing the obligation of a contract once made (18). The only security for state loans rests on the plighted faith of the state as a political community; that is, upon the same basis as contracts with independent governments (19). States are not, like nations, independent of each other, and are not permitted to allow the use of state names for the purpose of enforcing claims really owned by individuals (20).

As to torts and active injuries: It is no answer to a

13 Cohen v. Virginia, 6 Wheat. 264.

14 These are examined in the recent case. North Dak, v. North Carolina, 192 U. S. 286.

18 Cf. N. H. v. La., 108 U. S. 76, with N. D. v. N. C. supra.

16 Chappell v. United States, 34 Fed. Rep. 673.

17 State v Young, 29 Minn. 509; Hans v. Louisiana, 134 U. S. 1.

18 Murry v. Charleston, 96 U. S. 432, is an instructive case on this subject.

19 These are apparent exceptions to the maxim ubi jus ibi remedium. Stanley v. Schwally, 147 U. S. 518; State v. Young, 29 Minn. 509. 20 N. H. v. La., 108 U. S. 76; N. Y. v. La., Id.

tort (21) or an active infringement of a right (22) or a threatened injury (23) that the action was taken or is proceeding under supposed official duty or by virtue of official power; such cases are not damnum absque injuria.

Within the

§ 134. Limitation on their mode of action. limits and in regard to these subjects over which they have undoubted jurisdiction (24), the people of the states have no absolute, uncontrolled authority (25). The people of a state can only act through the legally constituted agencies of the law (26). They cannot change, alter or amend the constitution except in the modes provided by the existing law (27); and these are either through the action of a constitutional convention or the submission of amendments by the legislature, as pointed out by the constitution; but the constitutional convention cannot act independently of the existing state authority.

§ 135. The national constitution is supreme. A provision in the constitution of a state in contravention of the constitution of the United States is void, though contained in the constitution when the state is admitted into the Union.

An amendment of the state constitution in contraven

21 Belknap v. Schild, 161 U. S. 17.

22 Kilburn v. Thompson, 103 U. S. 168; U. S. v. Lee, 106 U. S. 196; Tindel v. Wesley, 167 U. S. 204.

28 Smythe v. Ames, 166 U. S. 466.

24 Id. See Dillon Laws & Jur. 227; Tindal v. Wesley, supra.

25 Not even as to taxation. Murry v. Charleston, 96 U. S. 432.

26 Luther v. Borden, 7 How. 1.

27 Koehler et al. v. Hill, 60 Iowa, 568; In re Duncan, 139 U. S. 449-61.

tion of the United States constitution is void, though accompanied with all the formalities of the law (28).

Treaties are placed by our constitution on a footing with the supreme law and beyond the power of the legislature to violate (29).

§ 136. Amendments of state constitutions. Though all new provisions are within the unquestioned powers of the people, those which are adopted without observing the forms prescribed in the existing state constitution, are void (30).

An amendment of a state constitution, all the provisions of which are within the undoubted powers of the state, which is not made through the ordinarily existing state agencies for determining the will of the people, is revolutionary and void (31).

The people of a state cannot lawfully secede from the Union (32). They may be compelled to establish a government republican in form (33).

The people of a state cannot act en masse-they must choose representatives (34).

The people act immediately through electors or voters, who are the immediate representatives of the great mass of the people.

28 State v. Hunt, 2 Hill, 1; State v. Young, 29 Minn. 509; Bigelow v. Draper. 6 N. Dak. 152.

29 The Diamond Ring, 184 U. S. 540; Downs v. Bidwell, 182 U. S. 244, 383.

80 Koehler v. Hill, 60 Iowa, 568.

31 Luther v. Borden, 7 How. 1; Koehler v. Hill, 60 Iowa, 568.

32 Texas v. White, 7 Wall. 721.

33 Id.; White v. Hart, 13 Wall. 646.

34 Jameson on Const. Conv., §§ 237, 348

§ 137. Nature of suffrage. The right to vote in American commonwealths is not of the same origin as the right to vote in England (35). This will be explained under the qualifications of citizens to vote. Suffice it to say here, that the right to vote is not a natural right-it is purely conventional (36).

§ 138. Voters are agents of the people, not rulers. Sometimes when we speak of the people of a state we do not allude to the whole body of inhabitants, but generally to the people in connection with the exercise of political power. It is said by an able lawyer that then the mind. turns from the whole body to that portion of them in whom is constitutionally vested the right to exercise the power of suffrage (37). The decision in that case seems to have been the basis for the expression by a text-writer that, as a practical fact, the sovereignty is vested in those persons who are permitted by the constitution of the state to exercise the elective franchise (38).

Neither the arguments of Mr. Drake nor the opinion of the court warrants such a conclusion. The judge of the court in that case drew the line sharply between the right of the English freeholder to vote as an incident to his tenancy in burgage, under which doctrine the right to vote was a vested right, and the privilege or franchise in America, saying the right to vote is not vested-it is

36 Luther v. Borden, 7 How. 1; Blair v. Ridgley, 41 Mo. 63; State v. Hunt, 2 Hill (S. C.) 1. See McCrary on Elections. §§ 9, 10, 11.

36 Ibid; Jameson, Const. Conv. 331-2.

37 Mr. Drake in argument, Blair v. Ridgley, 41 Mo. 63.

38 Cooley's Const. Lim., p. 40.