People already politically organized, is necessarily an illegal, revolutionary act when viewed from the standpoint of the old State. It may, indeed, be the case that in adopting the new Constitution the governmental machinery of the old State is employed; but, in such a case, those governmental organs, when so utilized, are to be conceived as no longer the agencies of the old State, but as implements employed by the new body politic for the execution of its own legal will.

In fine, then, it must be held that, though an existing State, so long as it acts through the forms prescribed for constitutional amendment, may wholly change the character of its governmental organization, or may delegate the exercise of its most important powers, it cannot by its own act create a new sovereignty.1

The Nature of a Federal State. Applying the foregoing conclusions to the apparent creation of a new Federal State by the union of a number of States, we are necessarily led to hold that though the birth of the new sovereignty is practically synchronous with the adoption of the written articles of union, it cannot be said that such Federal State owes its creation to that act. If it be admitted that, as a matter of fact, a single sovereign State has come into being, its con

1 The author realizes that this fundamental principle of political theory is by no means adequately treated in the foregoing paragraphs. Requirements of space compel him, however, to refer the unsatisfied or unconvinced reader to his "Nature of the State," Chapters VI and X, where the topic is more fully discussed.

ditioning basis must be considered to have been the feeling of national unity that first created it a single political body out of a number of sovereign Peoples, and then gave to it an objective organization. The new State cannot, in other words, be held to have derived its sovereignty by grant from the formerly existing sovereignties, nor can such sovereignties be held to continue to exist after the new national sovereignty becomes a fact.

We are thus irresistibly led to the conclusions that not only cannot a so-called Federal State be based upon an agreement or compact between preëxistent States, but that it cannot be itself, in any strict sense, composed of constituent States. In all exactness, the term "Federal State" is thus an improper one.1 A federal form of Government we may have, but not a Federal State; for a State is by its very nature a unity in that its essential attribute, its sovereignty, is necessarily a unity. There cannot be, therefore, any such thing as a State composed of States. Strictly speaking, therefore, the only correct manner in which the term "Federal State" may be employed is to designate a State in which a very considerable degree of administrative autonomy is given to the several districts into which the State's territory is divided. Conversely, we must hold that in all composite political organizations in which the individual members still retain their sovereignty, and therefore continue to exist as States, no National State is created. A Cen

1 Though thus technically incorrect, the author has felt himself constrained, by general usage, at times to employ the term "Federal State."

tral Government with very considerable powers may indeed exist, but only as the common agent of the several associated States, not as the organ of a distinct central sovereignty. Furthermore, the written articles of union, if such there be, cannot be regarded as a law or Constitution, but only as an international compact or treaty.

The foregoing analysis of the nature of sovereignty and the State enables us to say that the distinction between a National State with a federal form of government and a Confederacy of sovereign States is not based upon the quantum of powers, the exercise of which is vested in the Central Government; nor, neces; sarily, upon whether the commands emanating from the central legislature operate directly upon individuals or upon the individual Commonwealths; nor, finally, upon the difference between a Central Government with enumerated and one with unenumerated powers. The one absolute and finally determining criterion is: What authority has, in the last instance, the legal power of fixing its own legal competence, and, as a result, that of the others?

In the sovereign State of the federal governmental form, the legal right of secession on the part of the individual Commonwealths is of course excluded. From the strictly juristic standpoint, the CommonIwealths derive their existence from the will of the national State. They have, therefore, no control over their own political status.

The doctrine of nullification, which concedes to the Commonwealth members of a federal union, individually or acting in concert, a right to refuse obedience

to, and prevent the enforcement within their respective limits of, such federal laws as to them seem unwarranted by the articles of union, is also clearly inapplicable in a true federal State. Even in a Confederacy of sovereign States the right to "nullify" general laws cannot be spoken of as a legal right. Each member of such a union being completely sovereign, may govern its action by its own will, and no other member may legally say nay. It is hardly conceivable that the assertion of such a power on the part of a particular confederated State will not lead. to disruption of the union. For it can scarcely be imagined that the other members will consent to the avoidance by such State of the execution of a part of the general law, while they hold themselves bound to it. Such a condition of affairs would, in fact, result ipso facto in a destruction of the union to that extent, the sole end of the confederation being to secure a concert of action in matters of general interest. It would, indeed, be a just casus belli against the State so refusing obedience to the agreement in which it bound itself to common action. Jefferson, the author of the Kentucky Resolutions, himself asserted the propriety of a confederate government coercing a State when he wrote to Cartwright advising the Congress of the old Confederacy to send a frigate and compel a State to pay its quota of taxes; and in general those who in 1861 asserted that secession on the part of the individual States violated no legal obligation expressly repudiated the idea that States might refuse obedience to such federal laws as they objected to and still remain in the Union.

CHAPTER II

THE NATURE OF THE AMERICAN STATE

We are now in a position to consider the validity of the various views that have been held regarding the nature of the American State.

In the controversies which have been had as to the nature of our Union, the States' Rights school have held a single and logical theory, according to which it has been declared that the Constitution is, and was intended to be, the creation in 1789 of the several States acting as individual and sovereign political entities. Granting this premise, the conclusions which have been drawn from it as to the confederate nature of the Union and the legal right of secession have followed as logical and necessary consequences. All agreements between sovereign States necessarily partaking of a contractual character, a Constitution created by the union of the wills of several States cannot be other than of a non-legal or conventional nature. The States, therefore, which are united under it, it has been asserted by members of this school, are bound to abide by its provisions or to continue under it, only by practical or moral considerations. They are not, it has been declared, subject to it as to a legal superior, for that would be to make the creature superior to its creators.