ognized as legally valid unless they have received the formal approval of the old existing government. Thus, in the case of the State of Rhode Island, the old constitution of which contained no provision for its own amendment, the President of the United States refused to recognize as de jure a government established under a new constitution which, without the approval of the old government, had been drawn up and adopted by a majority of the adult male citizens of that State.23 But when, somewhat later, a new constitution was adopted in accordance with provisions which the old government laid down and approved, it was, and has since been, held a valid instrument both by the people of the State and by the National Government of the United States.

Whether or not a constitutional amendment has been constitutionally adopted, and is therefore to be recognized as law, is a matter for the courts to determine unless the constitutions in question have made specific provision for this determination by some other body. When, however, the question is as to the de jure character of an entirely new constitution, or of an amendment so radically changing the structure of the old government as practically to create a new one, the matter is deemed a political one, the determination of which by what are called the political departments of the government being held by courts as conclusive upon themselves. And it need scarcely be said that the courts established under a given constitution will not question the legal validity of that constitution, for, of course, it is only upon the basis of its validity that the courts themselves could claim any rights whatever of jurisdiction.

The Supreme Court of the United States, in the case of Luther v. Borden, 7 Wallace, p. 1, held itself concluded by this executive decision, the question as to when a government is to be deemed to be de jure in character being declared to be a political one, and, as such, to be decided by the political department of the government. The same doctrine has been repeatedly declared by the courts of the States of the Union. See the authorities cited by Corpus Juris, vol. XII, p. 880, note 35.

Corpus Juris, summing up the general doctrine of American jurisprudence upon the matter of adoption and amendment of written constitutions, says: "Whether or not a new constitution has been adopted is a question to be decided by the political departments of the government. But whether an amendment to the existing constitution has been duly proposed, adopted, and ratified in the manner required by the constitution, so as to become a part thereof, is a question for the courts to determine, except where the matter has been committed by the constitution to a special tribunal with power to make a conclusive determination, as where the governor is vested with the sole right and duty of ascertaining and declaring the result, in which case the courts have no jurisdiction to revise his decision."24

The State Though not Limited by, Must Operate Through, Law. In only one sense can it be said that the sovereign State, as conceived of by the Analytical Jurist, is controlled by Law. Being itself, when viewed as a legally omnicompetent person, wholly a product of juristic reason, it is, by its very nature, a legal entity, that is, one that necessarily operates exclusively through legal processes. Law, in other words, constitutes the medium or space, if a dimensional term may for the purpose of illustration be employed, in which it lives and moves and has its being. No act of a Sovereign State can, therefore, be illegal; and no illegal act can be an act of a State. Its governmental agents may act illegally, but, when they do, they do not represent the State. Thus,

"Vol. XII, p. 880. See also idem, p. 682, and authorities cited in note 78. The federal courts in the United States have declared that they will not question the validity of the processes by which constitutions of the States have been adopted or amended, if these constitutions or amendments have been recognized as valid by the political departments and judiciaries of the States concerned.

Corpus Juris (vol. XII, p. 682, sec. 18) refers to a Georgia case in which it was held that it was not essential to the validity of a constitutional amendment which in effect modified a constitutional limitation that the limitation should first be changed, since the amendment itself was to be construed as working the change.

though the State, as juristically conceived, is not, and cannot be controlled by law, and, therefore, cannot logically be regarded as the subject of legal rights and duties, it at all times is compelled, by its very juristic nature, to operate through law.

The fact that the State is above, if not outside of law, does not, of course, prevent it from permitting itself, as to particular matters, to be treated as though it were a private or non-sovereign person, and as such, to hold itself amenable to law. This is a practice which practically all modern States follow to some extent, and the principles of public law that relate to this practice will later be considered when the subject of the jurisdiction of the State is discussed.25

Sovereignty as a Title. A very common usage is that which describes as sovereign that organ of government which plays the more important or decisive part in the determination of what the State shall will, that is, which controls in fact the policies of the State. Thus, in an absolute monarchy, or in a limited monarchy in which the Crown retains a dominant influence in government, the King is often spoken of as the possessor of sovereignty. So, similarly, in States organized upon the democratic or representative basis, the people are spoken of as constituting collectively the entity in which the sovereignty inheres. This is an inaccurate statement, whatever may be the extent of the political authority of the absolute monarch, of the constitutional ruler, or of the citizen body. It is, indeed, of very great importance to determine in the case of any constitutional system whether all public powers shall be deemed to find their legal origin in an assumed plenitudo potestatis of a monarch, or in the body-politic from which, by specific delegation, the competences of other governmental officials are considered to derive their existence. But, it is to be "Post, chap XXIV.

repeated, in all cases, the sovereignty inheres in, and is possessed by, that political entity or person which we term the State. A government or any of its organs never does more than exercise sovereignty in behalf of, and as an agency of, the State.

As a mere matter of titular distinction it is common to speak of the ruler of a monarchically organized State as the Sovereign of the State. This usage, which prevails especially in international relations, has no relation to the constitutional powers or status of the King, Czar, Emperor, Sultan, or whatever he may be termed. The ruler whose actual influence and authority is insignificant is as universally termed the Sovereign in this honorific sense as is the most powerful autocratic Prince.

Sovereignty of Law. The phrase "the Law is Sovereign," which is not infrequently met with, has no other juristic significance than that the State is able to speak its legal will only in the form of law and in accordance with the constitutional provisions that, at the given time, are in existence. Stated negatively, it means that every governmental official must be able to justify every exercise of public power upon his part by a reference to a constitutional or other valid statutory delegation to him of legal authority. Purely personal and arbitrary discretionary power is thus excluded. The doctrine is thus that stated by Mr. Justice Matthews, when he says that "the law is the definition and limitation of power."28 The same principle is enounced in the Massachusetts Constitution when it declares that the government is to be one of laws and not of men.

Popular Sovereignty. The terms then, "sovereignty of the people," "popular sovereignty," and "national sovereignty," as will be more fully explained, cannot accurately be held to mean that, under an established government, the sovereignty remains in the people. It may "Yick Wo v. Hopkins, 118 U. S. 356.

mean, however, that the constitutional jurisprudence of the State to which it is applied is predicated upon the principle that no political or individual or organ of government is to be regarded as the source whence, by delegation, all other public powers are derived, but that, upon the contrary, all legal authority finds its original source in the whole citizen body or in an electorate representing the governed.