satisfactory results. We ourselves are already experiencing like benefits from the equity rules and procedure promulgated by the Supreme Court of the United States. They have been so generally welcomed and approved that earnest efforts to secure like action in common-law procedure have a promising outlook. The proposed centralization would surely lead to simplicity of pleading, eliminate unnecessary technicalities, and by reason of readiness of adjustment produce a practical administration of justice in harmony with changing social and economic needs. Appeals and retrials could rest upon matters purely judicial, and a better discipline be maintained over subordinates, including the bar. Above all, it would avoid delay, for the entire judicial force would be available for distribution wherever the dockets showed congestion. Obviously such a system as here put in outline thought, to be efficient, would need to be instituted so clearly as to absolutely embrace the entire judicial power. Limitations, however, would appropriately appear in provisions for uniformity, review for prejudicial error only, terms and periods of appeals, and general effect of records. On the other hand, it is apparent that the legislature would have to be restrained from interfering and specifically confined to matters of purely substantive law.

Upon two points there would have to be definite constitutional departures from deep-rooted traditions--one in respect of trial by jury, which should be made optional, and the other as to some features of the law of evidence, that peculiar product of the common law unknown to other systems. Inevitably and logically this body of rules would be made more subject to the discretion of trial judges. There is no present-day justification for the existing legal reverence for these rules. One of the most distinguished legal scholars of this country has said: "Judges made them-for the most part English judges— centuries ago, and made them because they had to deal with juries composed of illiterate men of untrained minds, incapable of making nice discriminations as to the weight of testimony." (Simeon E. Baldwin, "The Artificiality of Our Law of Evidence, Yale Law Journal, December, 1911.)

Naturally there would have to be left to the legislative department the entire field of those procedural rights which have become recognized as substantive law, such as statutes of limitation or rights of acquisition or release by prescription as known in our sister Republics, and survival of rights of action, peculiar to our own jurisprudence.

These are intended to be but outline suggestions. The scope, however,it is hoped, is manifest. The need is great, lest we drift more irretrievably into that trackless wilderness of "administrative justice" where so many social and political pitfalls beset the wanderer.

The task is not beyond reasonable accomplishment if approached with de liberation and a fixed purpose. "The obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair play, but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties." (Federalist, XXXI.)

Out of the mass of errors and experiments it is not too much to predict that the American nations in fulfillment of their divine destiny already adumbrated in the affairs of the world, will find the enlightened path by which public law will progress constantly toward every desideratum of a true American Republic. Then shall there be exemplified the harmonious and scientific perfection of a written constitution providing for three independent governmental departments administered wholly and solely by representatives. The common national devotion to this ideal shall become the very structure and the strength of true Pan Americanism.

The CHAIRMAN. We have listened with a great deal of pleasure to the interesting address delivered by Mr. Smithers. He will pardon me for alluding to a fact which is so recent, perhaps, and possibly so important as not to have made much impression, i. e., that at the last election the citizens of the State of Maryland by a vote of two to one adopted the referendum. I think they did so actuated by the feeling which Mr. Smithers expressed in an entirely different sense, i. e., that the legislative enactments do not always carry out the will of the people, and I think the people of Maryland adopted the referendum for the purpose of making legislative enactments conform to that will.

We next have the pleasure of listening to an address by a gentleman who comes from a State which has both the initiative and the referendum, the State of Maine. The Hon. Lucilius A. Emery, formerly chief justice of the State of Maine, will address us on "The effect of American public law on our written constitutions in their bearing on the sovereignty of the State."

THE EFFECT OF THE AMERICAN PUBLIC LAW ON OUR WRITTEN CONSTITUTIONS IN THEIR BEARING ON THE SOVEREIGNTY OF THE STATE.

By LUCILIUS A. EMERY,

Lecturer on Roman Law, University of Maine.

In considering this topic I may begin with a definition of the terms State and sovereignty. In its political sense I think a State may be correctly defined as an independent, exclusive political organization of the people of a definite territory, possessing by general consent coercive power over persons within that territory. It must be independent of any political organization or power outside of its territory and the exclusive possessor of such power within its territory. Such an organization, whatever its framework and origin, is styled a sovereign State, and its sovereignty consists in its independence and exclusiveness. I do not think it a necessary element of sovereignty that the State, the political organization, should possess unlimited power of coercion. There are some things it can not do at all. It can not control beliefs, thoughts, sentiments, however much it may influence them. As to conduct also there are some limits beyond which the State can not go, because of unconquerable resistance excited or because such an attempted stretch of power would disrupt the organization itself. To constitute sovereignty in a State it is enough that what coercion it can properly exercise it can exercise at its own will unrestrained by any other authority.

But no organization, political or other, of more than a few members can exercise its power directly. It must make use of agencies few or many according to the purposes it desires to accomplish. It must intrust its powers to them. So all the power of the State must, for the time being at least, be exercised by some agency or agencies. Whatever the theory as to the seat of the power or its rightful possessor, it is necessarily exercised by some individual or group of individuals.

Now, where in the State is its sovereignty power centered-in what agency, or person, or group? Has it any center or is it diffused throughout the entire organization without concentration anywhere?

As to monarchial States the answer is that, in theory at least, the sovereign power of the State is concentrated in the monarch. He possesses all the powers of the State. He exercises them through his own agencies. The armies, the navies, the courts of justice, the legislatures-all the agencies of government are his, exercising in his name his powers-executive, legislative, judicial, and administrative; all acts of State are in his name. No law binds him without his consent. Indeed he is the fountain of law and of all civil and political rights. Magna Charta in theory and form was the gift of the monarch. The Petition of Right was, as its name indicates, a petition to the monarch which he granted however unwillingly. With but few exceptions whatever constitutions monarchial States possess were granted by or extorted from the monarch. In the more absolute monarchies the fact, to a great extent, conforms to the theory. The Russian Duma was set up by the direct act of the Tsar and exercises only such powers as he has granted. In the less absolute monarchies, though the fact no longer conforms thereto, the theory that the monarch is sovereign, that the sovereignty of the State is vested in his person, is still maintained as a useful, if not necessary, "legal fiction." But however useful the fiction may be for some States, it clearly is not now necessary for all. The experience of modern republics shows that a republic may be as truly sovereign as a monarchy and with a sovereignty as complete, without putting forward any person or group or class of persons as possessing or even personifying its sovereignty. None of their agencies, none of their officers, however important his function, however exalted his station in the State, is placed above the law even in theory. All are subject to the law, those who enact the laws, those who interpret them, those who execute them, those who exercise any governmental power.

If, however, all are subject to the law, if there is in the State no person or agency above the law to give the law to the rest, it would seem necessary that the law thus governing all alike should be made definite. This supreme law can not be left indefinite, unexpressed. The monarch, the personal sovereign, is an expression concrete, visible. The "legal fiction" of his sovereignty more easily. secures the loyalty and unity of the people. In States where such "legal fiction" is not made use of, where a supreme law takes the place of a personal sovereign, that law must be made visible in some sort of a written constitution to which the fealty of the people can attach. Even the God-fearing, law-abiding pilgrims on the Mayflower found it necessary to write out the famous compact to which they were to be loyal.

I know of no really republican State without a written constitution, and several monarchical States of more or less republican tendencies now have them. Some of these are in theory granted by the monarch. Others purport to have been framed by representatives of the people. In all republican States, however, the constitution has emanated more or less directly from the people.

Some of these constitutions contain little more than provisions relating to the form of the government, the different agencies for the exercise of its various powers, etc. In some are stated certain political principles as necessary to be observed to secure good government and the liberty of the people, but without any provision to compel such observance. No barrier is provided against their violation by governmental agencies. Indeed, in some few States the constitution itself provides that it may be changed or even practically repealed by one or more such agencies as in France and Chile (ch. 11, art. 156). In a

few others the legislature is made the sole interpreter of the constitution. (Chile ch. 11, art. 155).

I do not see how, under such constitutions, the questinon stated at the head of this paper could arise. Apart from those fixing the form, the framework of the government, all their provisions could be avoided by the legislature or the legislature and executive combined.

Most American written constitutions, however, go further and not only prescribe the framework of the Government, but divide its powers among different and independent agencies, and limit the powers of those agencies by express definition and prohibition. Especially do they, with few exceptions, explicitly limit the legislative power which otherwise would be practically unlimited. Such constitutions may seem to raise the question of their effect upon the sovereignty of the State. They can not, however, be separately considered in this paper. One must be taken as a type.

The earliest of American constitutions, except those of a few of the original States of the United States, is that of the United States itself, framed in 1787. This Constitution has been so successful in its operation in foreign and domestic affairs that, as other American States secured their independence and set up government for themselves, they have to a greater or less extent established constitutions of the same general character. I may therefore take that constitution as a type.

Were it not, however, for some few distinctive characteristics of that Constitution, its effect upon the sovereignty of the State would not be mooted. These are also characteristics of many other American constitutions either expressed or by implication. The character of the State, the form of its government, the distribution of its powers, and the extent to which they may be exercised by any agency are not left indefinite by general declarations, but are carefully defined in writing. There is a necessary implication, at least, prohibiting the concentration of all the governmental powers, the sovereign power, in any one person, group, or department. The three great powers or depart

ments are expressly assigned, each to a different person or group; and, as a corollary, no person commissioned to exercise any power of one department can be authorized, while holding that commission, to exercise any power of any other department except as the Constitution itself may permit. Further and far more reaching in its effect on the sovereignty of the State are the limitations imposed upon the exercise of the legislative power, not by laying down principles for its guidance but by express prohibition, by explicit statement of public and private rights, which the legislature is forbidden to abridge.

Again, the power to amend the constitution is not left indefinite to be claimed by the legislature either alone or in conjunction with the executive or by the mass of the people or the electorate alone. It is explicitly stated what agencies may exercise that power and by what procedure. Any attempt at its exercise by any other agency, even by a majority of the people, would be an act of rebellion against the sovereignty of the State as in the case of the Dorr rebellion in Rhode Island, when the majority of the people led by Dorr sought to change the constitution by extra-constitutional means and methods. Lastly, I note the express command that the Constitution with all its provisions 66 shall be the supreme law of the land," and that all executive, legislative, and judicial officers, National and State, "shall be bound by oath or affirmation to support it." This explicit provision, with its logically inevitable consequence, is what perhaps more than any other provision suggests the question of the effect of American written constitutions on the sovereignty of the State. If the Constitution is the supreme law of the land, as it must be to

be a constitution, and all the judges are bound to give it effect as such, then, they are bound to refuse recognition as law or lawful any legislative or executive act in conflict with that supreme law, if such judgment be judicially invoked by any person affected by such act.

These constitutional provisions undoubtedly do have some effect upon the sovereignty of the State, but it is submitted that such effect is only upon the speed, mode, and course of its exercise, and not at all upon its potency. The State thus organized is still sovereign. It is still independent of any foreign jurisdiction, and by the express terms of the constitution itself it is supreme within its territory. Its sovereignty, however, can not be in any governmental agency nor in all of them since they are created and upheld only by the constitution. In the constitution of some of our sister American Republics it is expressly declared that the sovereignty of the State abides in the nation or the people. In our Constitution there is no such declaration. The word "sovereign or "sovereignty" is not found in it, but logically and necessarily the sovereign power is the power that created the Constitution, the power of the people acting through their electorate. The people exercise a supreme power of sovereignty when they establish a written constitution which shall be the source and measure of every governmental authority over them. All political action, legislative, executive, and judicial, if authorized by the Constitution, is by their authority. If forbidden by the Constitution it is forbidden by them.

True, the people have limited the powers of their various agents, but in so doing they exercised sovereign powers, and they exercise sovereign power in continuing those limitations. They even have sovereign power over the Constitution itself. The power that established the Constitution can enlarge or narrow its provisions and can radically change its character. True, again, they have prescribed the agencies and procedure for making such changes and the terms upon which they may be made, all which they must themselves observe, unless they would resort to a revolutionary disruption of their political organization. In such observance, however, they still govern. They govern themselves-a sublime proof of their sovereignty.

The Constitution of the United Stataes and those of our sister American Republics are based on the political theory that the individual man is endowed by nature with certain unalienable rights which the State should not violate, but should protect, even from itself. The framers of these constitutions were students of political history and theories and had experience of governments based on the opposite theory that all rights of man were gifts of the State. They sought, therefore, to establish a State in which the agencies of government should be strong enough to protect but not strong enough to oppress. We may properly claim that in great measure they succeeded. By means of the constitutional restraints imposed by the people on themselves, as well upon their agents, they have protected themselves from the dangers of too hasty action upon passing popular impulse; have secured time for second thoughts; have provided for the protection of the minority, but have not crippled their own sovereignty.

Taking again the United States for an illustration, that State for a century and a quarter under its Constitution, and by virtue of it, has exercised sovereign power. It has made war and made treaties of peace and commerce. It has enforced its laws and suppressed rebellions. Its sovereign people have from time to time, as found necessary, amended the Constitution itself.

In the Pan American Building near by I noticed upon the beautiful flag of our sister Republic of Brazil a motto which I am told may be translated