recognize the existence of the house-can act as if it did not exist; but the law has nothing whatever to do with putting the bricks together in such a way that, if the law is not to shut its eyes to facts, it must recognize that a house exists and not merely a number of bricks. Hence, it follows that in recognizing the existence of a corporation as an entity, the law is merely recognizing an objective fact." 14

However, recognizing to the full this group "reality" which comes into being independently of state action, and which may operate without recognition by the State's law, no admission is made which prevents the jurist from holding that, as a legal entity or person, no group can exist save as created or recognized by the State, that is, by its laws. Nor can anything but confusion of thought arise from failing to distinguish between this unity of psychological or social or economic fact and that legal unity or personality which the jurist ascribes to the State, and which the State, in turn, through its law, imposes upon, or ascribes to, individuals, groups of individuals, or even to things, such as a fund or an estate. In other words, this unity, or personality if one so wishes to call it of which writers like Gierke, Maitland, Figgis and Laski speak, is not a juristic attribute, and, therefore, its "reality," granting it to exist, cannot be attached to, or pasted upon, as it were, the juristic conception of personality. The two ideas do not fall within the same realm of thought. They are irrelevant to each other.

The question, then, whether or not groups of individuals which are united by common sentiments or material interests possess, by that very fact, a real personality in other than a juristic sense, is one that may be left to metaphysicians. We cannot, however, resist the temptation

14

Arthur W. Machen, Jr., "Corporate Personality" in the Harvard Law Review, vol. XXIV, p. 253 (February, 1911). Mr. Machen is the author of a standard treatise on the law of private corporations.

to quote the point so well made by Professor Cohen, that, because a number of individuals find themselves united by the closest of common interests or opinions, there is no warrant for saying that a thing, much less a thing that has a life and will of its own and therefore entitled to be termed a person, has been brought into existence. However strong or intensive the unity that exists, it is, after all, a relationship and not a new entity or real thing that has been created. Professor Cohen continues: "The tendency to think of relations and operations as things is one of the most common sources of philosophic error. All are agreed that groups are characterized by some kind of unity, and the fundamental issue is whether this unity shall be viewed as an entity additional to the entities unified and of the same kind, or whether it shall be viewed for what it is, as just the unifying relation. The tendency to personify groups, ships, storms, debates, and everything else, is as old as human thought, and is in some measure unavoidable. For we must always depend on analogies, and personal analogies give our language a vividness without which our hearers may be entirely unmoved. But modern mathematical logic has taught us to avoid the old form of the issue between nominalism and (the older) realism by recognizing the relational character of unity, or at any rate to recognize the different types of unity. When any one oracularly informs us that the whole is more than the sum of its parts, we reply that that depends upon the meaning of the word sum. Of the things that can in any definable sense be added, the whole is just the sum of its parts and nothing else. . . . The history of philosophy from Aristotle to Bradley has fully shown the vicious infinite regress which follows when our substance becomes an additional quality, or when our unifying reality becomes an additional thing. When two persons are united in the marriage relation the unity is

not in itself an additional person, though such unity makes possible many things which could not otherwise happen." 15

13

15 "Communal Ghosts and Other Perils in Social Philosophy," in the Journal of Philosophy, vol. XVI (1919), p. 673.

CHAPTER V

STATE AND GOVERNMENT DISTINGUISHED

By the term "Government" is designated the organiza- vī tion through which the will of the State is formulated, uttered and executed. The distinction between the State and its Government is thus analogous to that between a given human individual, as a moral and intellectual person, and his material physical body. By the term State is understood the political person or entity which possesses the lawmaking right. By the term Government is understood the agency through which the will of the State is formulated, expressed and executed. The Government thus acts as the machinery of the State, and those who operate this machinery-the Magistracy-act as the agents of the State. They exercise, but do not possess, sovereignty; and the extent of their several legal powers is determined by the will of the State as expressed in its laws.

This distinction between the possession of sovereignty and its exercise is of fundamental importance as will later appear when the juristic nature of the Federal State, of the Confederacy and of other composite forms of State life is considered.

The State Wholly Organized in its Government. At all times the State is wholly organized in its Government. That is to say, the only way in which the State can operate is in and through its Government. This is true whether the State is expressing or executing its will with reference to a minor routine administrative matter, or

declaring its will with reference to questions of fundamental constitutional concern. Thus it may be that, as in the United States, certain organs of Government, such as constitutional conventions, are but seldom employed. But when they do function for the creation either of State or Federal Constitutional Law, they are as much parts of the Government as are any other of the permanent portions of the State's governmental system.

The only respect in which it may be said that a State acts outside of its Government is when it is conceived of as establishing that Government. As will later appear when the juristic origin of the State is examined, the State, though the source of law, is not, and cannot be conceived of as founded upon a pre-existing law. That is, every sovereign State starts de novo, and not by way of emanation from, or a creation of, another sovereignty. Therefore, it necessarily follows that its Government must also come into being as a spontaneous act of the State or of its People. When a Government is established by legal means, that is, by a process of constitutional amendment in accordance with the forms provided by existing constitutional law for its own amendment, the Government is, of course, not a new one, but the old one merely altered. If, however, a change in the form of Government is brought about by illegal or revolutionary means, however peaceably, a new Government régime is instituted which finds its basis in the original, spontaneous or directly sovereign act of the State or its People.

As comprehensively used, the Government of a State includes every political agency of the State down to the most minor local administrative organ. And, in a State such as the United States, which is conceded to possess the sovereignty, its Government may be said to embrace not only the federal governmental organs, but those of