464 HARVARD LAW REVIEW IV The America which a Revolution brought into being did not relinquish the rights surrendered by George III at Versailles. If the people is to be master in its own house, it will not beUttle it- self and cease, in consequence, to be sovereign. Rights here, as elsewhere, are to flow from the fount of sovereign power; and its irresponsibility is the natural consequence. That the state is not to be sued, in truth, is taken, even by the greatest authority, as a simple matter of logic. "A sovereign," says Mr. Justice Holmes,^^ "is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." Nor did Mr. Justice Holmes fail to draw the inevitable conclusion from that attitude. The sov- ereignty of the people will mean, in actual terms of daily busi- ness, the sovereignty of its govemment.^^ "As the ground is thus logical and practical," he said, "the doctrine is not confined to powers that are sovereign in the full sense of juridical theory, but naturally is extended to those that, in actual administration, originate and change at their will the law of contract and prop- erty from which persons within the jurisdiction derive their rights." Here is the Austinian theory of sovereignty in all its formidable completeness; though it is worth while noting that its complica- tions have elsewhere driven Mr. Justice Holmes to the enunciation of a doctrine of quasi-sovereignty that the hardness of the rule might suffer mitigation. ^^ No such certainty, indeed, existed in the early days of the Repubhc; and Chief Justice Jay and Mr. Justice Wilson regarded the immunity of the state from suit as the typical doctrine of autocratic government.^® But, from the time of Cohens v. Virginia,^ the doctrine of non-suability has taken firm hold; and men such as Harlan, J., have urged it with almost rehgious fervor.®^ ^ Kawananakoa v. Polyblank, 205 U. S. 349 (1907).
- • Cf. my paper on "The Theory of Popular Sovereignty" in the Mich. L. Rev.
for January, 1919. »* Georgia v. Tenn. Copper Co., 206 U. S. 230 (1907). »« Chisholm v. Georgia, 2 Dall. (U. S.) 419 (1793). " 6 Wheat. (U. S.) 264, 382 (1821). '8 Cf., for instance. United States v. Texas, 143 U. S. 621 (1892), and Fuller, C. J., in Kansas v. United States, 204 U. S. 331 (1907).
