that every sovereign together with his subjects must constitute a nation, depends upon the hypothesis that the authority of a sovereign is necessarily unlimited, and with that hypothesis it must stand or fall.
The second method in which the limits of sovereign power may be definitely fixed is, by means of a declaration, sufficiently pre- cise to enable the members of the society to distinguish between those commands which fall within the authority of the sovereign and those which do not. Such a declaration can be made in various ways, and, in order that it may have the effect proposed, it is only necessary that the bulk of the community should consider all commands issued in excess of the authority set forth invalid, and should not be disposed to obey them. It can be made, for example, by means of a convention or compact as Bentham suggests, or without any compact by the sovereign himself, by an assembly of citizens when changing the form of government, or by several independent communities when uniting to create a new nation. It is, in fact, conceivable that it might be made with out any written instrument at all, by a process of gradual evolution, although such a state of things is not very likely to occur, and probably would not be permanent. Provided, however, the result I have described is reached, the method of attaining it is quite immaterial.
Several different theories about the political institutions of the United States have been put forward from time to time, but I shall refer to them only for the sake of suggesting the bearing which the foregoing discussion may have upon them. If Austin's doctrines concerning the nature of sovereignty and of law be accepted, only two views of the government of this country can be entertained. Of these, one has been rendered famous by the advocates of extreme States' rights, who considered the State completely sovereign, and maintained that without its own consent (a consent revocable, moreover, at any time), neither the State nor its citizens could be bound by any command of the central government. The other is the extreme national theory, which treats the authority of the States as entirely dependent upon the pleasure of the national sovereign; meaning, of course, by this term, not Congress, but the States in union, the American people, or who ever else the sovereign of the nation may be. Now, if the first of these views is adopted the Constitution must be looked upon as a
