86 HARVARD LAW REVIEW.

treaty revocable by any party thereto ; if the second, it is a com- mand issued by the national sovereign, which can be changed at will by him ; but if, on the other hand, we reject Austin's theory, we are at liberty to consider the Constitution neither a treaty nor a command, nor even a law at all, but a declaration of the limita- tions of various sovereign powers, which cannot legally be changed except in the manner provided in the instrument itself. The re- cent discussion in Rhode Island, of the question whether the Con- stitution of a State can legally be amended, except in the mannet prescribed therein, turns in part upon the same principles, because, if Austin's theory is sound, the Constitution is a law set by the sovereign, who is, in the case we are considering, the electoral body of the State ; and it follows that this body must have power to revoke or alter its own commands. But, if Austin's theory is wrong, it is possible that there may exist in the State no legislative or sov- ereign power whatever, except such as is described in the Constitu- tion, and, if so, neither the voters nor any other body of persons can have any legal authority to make changes in the government, ex- cept in accordance with the provisions of that instrument.

It may be worth while, in this connection, to remark that, whether, like Austin, we consider a constitution a law set by an ab- solute sovereign, or whether we regard it as a law made without the command of a political superior, or even as no law at all, but simply as a declaration of the existing limits of sovereign power, the effect of an unconstitutional statute is in each case the same, because, if the Constitution, whatever its origin, is a law of superior authority, every inferior law inconsistent with it must be void ; and if, on the other hand, without being a law it is the measure of leg- islative power, a statute which exceeds the limits prescribed is des- titute of legal authority, and is equally invalid. On this point, indeed, and in regard to the functions of courts in dealing with such laws, all these theories are exactly in accord.

In attacking the doctrines concerning sovereig^nty and law taught by the analytical jurists, I have in reality only b.een trying to carry out their own principles. Before their day it was customary to seek a foundation for sovereignty in some antecedent right to rule, such as a divine commission or an original compact, and the great change in the theory of government which Bentham and Austin introduced consisted in their assertion that sovereignty was not a

question of right, but of fact ; that the sovereign was not the person