the individual member States including, of course, all of their local governmental agencies.

State and Government Distinguished by the United State Supreme Court. The distinction between State and Government, as well as that between the citizen body of a State and the State itself, frequently needs to be drawn in the courts as a matter of concern to municipal law, and it is constantly employed in international relations. This latter necessity will appear in later chapters in which the juristic concepts of international law are examined. As illustrating the need for making the distinction in national or constitutional law, may be quoted the language of the United States Supreme Court in two of its most important decisions.

In Poindexter v. Greenhow,1 one of the Legal Tender Cases, the Court said:

"In the discussion of such questions the distinction between Government of a State and the State itself is important and should be observed.

"In common speech and common apprehension they are usually regarded as identical; and as, ordinarily, the acts of the Government are the acts of the State (because within the limits of its delegation of power), the Government of the State is generally confounded with the State itself, and often the former is meant when the latter is mentioned. The State itself is an ideal person, intangible, invisible, immutable. The Government is an agent, and within the sphere of the agency, a perfect representative; but, outside of that it is a lawless usurpation. The Constitution of the State is the limit of the authority of its Government, and both Government and State are subject to the supremacy of the Constitution of the United States and of the laws made in pursuance thereof. 1114 U. S. 270.

So that, while it is true, in respect to the Government of a State, as was said in Langford v. U. S. (101 U. S. 341) that the maxim that the King can do no wrong has no place in our system of Government, yet it is also true, in respect to the State itself, that whatever wrong is attempted in its name is imputable to its Government and not to the State. For, as it can speak and act only by law, whatever it does say and do must be lawful. That which, therefore, is unlawful because made so by the Supreme Law, the Constitution of the United States, is not the word or deed of the State but is the mere wrong and trespass of those persons who falsely speak and act in its name. It was upon the ground of this important distinction that this court preceeded in the case of Texas v. White, 7 Wall 700, when it adjudged that the acts of secession which constituted the Civil War of 1861 were the unlawful acts of usurping state governments and not of the States themselves, inasmuch as the Constitution, in all its provisions, looks to an indestructible union, composed of indestructible States, and that, consequently the war itself was not a war between States, nor a war of the United States against unlawful and usurping governments representing, not the States, but a rebellion against the United States. This is, in substance, what was said by Chief Justice Chase, delivering the opinion of the Court in Thorington v. Smith, 8 Wall, 1, 9, when he declared, speaking of the Confederate Government, that ‘it was regarded as simply the military representative of the insurrection against the authority of the United States.' The same distinction was declared and enforced in Williams v. Bruffy, 96 U. S., 176, 192, and in Horn v. Lockhart, 17 Wall, 570, both of which were referred to and approved in Keith v. Clark, 97 U. S., 454, 465."

In Texas v. White 2, the leading case in which was 27 Wall 700.

considered the status of the Southern States during and immediately after the Civil War, the Supreme Court, speaking of the word "State," declared as follows:

"It describes sometimes a people or a community of individuals, united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community; not infrequently it is applied to the Government under which the people live, at other times it represents the combined idea of people, territory and Government.

"It is not difficult to see that in all these senses the primary conception is that of a people or community. The people, in whatever territory, dwelling, either temporarily or permanently, and whether organized under a regular Government or united by looser or less definite relations, constitute the State..

"In the Constitution the term 'State' most frequently expresses the combined idea just noticed of people, territory and Government. A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a Government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States, under a common constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States and makes of the people and States which compose it one people and one country.

"The use of the word in this sense hardly requires further remark. In the clauses which impose prohibitions upon the States in respect to the making of treaties, emitting of bills of credit and laying duties on tonnage, and which guarantee to the States representation in the House of Representatives and in the Senate, are found

some instances of this use in the Constitution. Others will occur to every mind.

"But it is also used in the geographical sense, as in the clauses which require that a representative in Congress shall be an inhabitant of the State in which he shall be chosen, and that the trial of crimes shall be held within the State where committed.

"And there are instances in which the principal sense of the words seem to be that primary one to which we have adverted, of a people or political community as distinguished from a Government. In this latter sense the word seems to be used in the clause which provides that the United States shall guarantee to every State in the Union a republican form of Government, and shall protect each of them against invasion. In this clause a plain distinction is made between a State and the Government of a State. . . . Our conclusion, therefore, is that Texas continued to be a State and a State of the Union, notwithstanding the transactions to which we have referred. "When the war closed there was no Government in the State except that which had been organized for the purpose of waging war against the United States. That Government immediately disappeared. The new freemen necessarily became part of the people, and the people still constituted the State; for States, like individuals, retain their identity, though changed to some extent in their constituent elements. And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty. There being, then, no government in Texas in constitutional relation with the Union, it became the duty of the United States to provide for the restoration of such a Government."

...

Other Uses of the Word Government. A use of the word Government, which is a common one but which is quite aside from the analytical conception is that according to

which the ruling executive chiefs, in whose hands for the time being the direction of the larger public policies of the State is placed, are termed the Government. Thus, in England, one speaks of the Liberal or Conservative Government. In Germany, "Regierung" is employed to designate the Chief Executive and his advisers who have in their hands the general guidance of the Ship of State. So also, in the United States, one describes as a "government measure," a legislative proposal which has the active support of the President and his advisers. The word "Administration," it may be added, is often used almost synonymously with "Government" as thus employed. Thus a government measure is also often spoken of as an "administration measure."

Burgess Criticized. A distinction between the concepts of State and Government which is quite different from the one accepted in this treatise, is that which is employed by Professor John W. Burgess in his various publications. In the writer's opinion, the distinction which Professor Burgess makes is a very confusing one, and one that cannot consistently be employed in the interpretation of the principles of constitutional law as they actually exist. Inasmuch, however, as this doctrine has, through the influence of Professor Burgess, obtained considerable currency in America, space must be spared to consider it.3

Professor Burgess defines the State as "a particular portion of mankind viewed as a political unit." Further examining this definition, he declares the State to be, as to the people over whom it rules, all-comprehensive,that "its organization embraces all persons, natural or legal, and all associations of persons," within its territory; that it is exclusive in the sense that there cannot

The author first made the criticism which follows in an article entitled "The Political Theories of Professor John W. Burgess," published in the Yale Review for May, 1908.