2(16 



refutation of the proposition that the power of the government may be 

 limited by constitutional laws or statutes ; and, consequently they assert 

 that constitutional law, whether established by custom or by written con- 

 stitution, is not in fact law. Which, at least to Americans, seems to be 

 inconsistent with facts familiar to them from their own experience. For, 

 in this country, the powers of all our governments, State and Federal, 

 are, in fact, limited by written organic or constitutional laws ; and it 

 cannot be doubted, either that these are statutes or laws in the strictest 

 sense, or that our governments are supreme or sovereign governments. 

 Nor is this proposition iuconsistent with the conclusions asserted by Aus- 

 tin. For, in his argument, the term "sovereign," is expressly defined 

 as equivalent to "supreme government," and consequently the law, as 

 consisting of the commands of the sovereign, as thus defined, or, in other 

 words, of the commands ot the government. But, in the popular, or, as 

 it may be called, American doctrine — which asserts the possibility of lim- 

 iting the power of the government by written constitutional laws — the 

 sovereign whose commands are referred to, is the State as distinguished 

 from the government, and consequently the law (lex) is regarded as con- 

 sisting nut only of statutes enacted by the ordinary legislature, but as in- 

 cluding also statutes enacted by constitutional conventions. Hence, 

 having regard to the double meaning of the terms used, the two propo- 

 sitions, though verbally, are not really, inconsistent, or, in other words, 

 the one is not the elenchus of the other. For we may say, without con- 

 tradiction, that the supreme government is at once sovereign, and not 

 sovereign — i. e., sovereign, as being the supreme government, or political 

 organization in the State, but not sovereign, as being the State ; and that 

 while its power cannot be limited by laws enacted by itself, or, in other 

 words, by its own commands, it may be limited by constitutional laws or 

 commands of the State imposed by a constitutional convention. 



Nor is the fact material — as claimed by Austin — that a constitutional 

 convention is itself "an extraordinary or ulterior legislature ; " * for such 

 a convention is not a government, even When in session ; and is still less 

 so after it is dissolved, and its members mingled with the body of the 

 people. 



Nor is it true that constitutional laws are without sanctions, even as 

 against the government. For, though no punishment is, or can be pro- 

 vided for the fictitious or imaginary being, who, in corporate govern- 

 ments, is conceived to be the sovereign — and who, in fact, as was observed 

 by an eminent jurist, has neither a soul to be saved, nor a body to be 

 kicked — yet provision may be, and is made for the punishment of the in- 

 dividual ofiicers that constitute the government, or sovereign, and by 

 whom its powers are actually exercised ; and in this way our " artificial 

 man '' Leviathan, may be, and is, eflectually controlled. 



Finally, Austin seems to regard his conclusion as equivalent to the pro- 

 position of Sydney, that all governments must necessarily be vested with 



*Jur., 254. 



