held to have been illegal and revolutionary in character when looked at from the standpoint of the old State; for there is no legal means by which the sovereignty of one or several bodies politic may be transferred to a new political entity. In fine, sovereignty, though itself the source of all law, is not itself founded upon law. It is based wholly upon fact, and its existence has to be demonstrated as such. Bearing in mind, then, this fact, and granting that the Constitution at the time of its adoption, created, and was intended to create, a Confederacy, it may properly be argued that there soon came into being a national feeling which created a national sovereignty that was objectively realized both in explicit declaration and in fact. Adopting this reasoning it may be said that the circumstance that the Constitution was so indefinitely worded that it could be interpreted as creating a National State, without doing too much violence to the meaning of its terms, enabled the people, through Congress and the Supreme Court, to satisfy their desire for political unity without a resort to open revolutionary means. Still, it must be conceded by those who take this view, that however peaceably and gradually the transformation to a Federal State was effected, the change was necessarily revolutionary in character. It does not help them to point to the manner in which its steps were clothed in apparent legal form. In our next chapter, then, we shall consider some of the events following the inauguration of the new government which tend to demonstrate that, however confederate in character the Union may have been at the time of its creation, a National Federal State soon came into being.

CHAPTER III

THE DEVELOPMENT OF NATIONAL SOVEREIGNTY

WE are warranted in assuming that, from the very beginning of the new régime, the great improvement both in political and commercial conditions must have tended to impress the people generally with the advantages of an effective central government. Such measures of national legislation as the Impost and Navigation Acts, the reenactment of the Northwest Ordinance, the assumption of state debts, the establishment of a National Bank, all adopted within a few years after the establishment of the new central authority, operated greatly to increase the actual influence and power of the Federal Government. Incidents such as the successful suppression of the socalled "Whisky Rebellion" in Pennsylvania must also have had a considerable weight in the same direction. None of these exercises of the federal power, however, with the possible exception of the last, influential though they may have been to evoke the sentiment that was needed to create and maintain a national State, involved any explicit assumption of a federal authority necessarily inconsistent with the continued existence of the sovereignty of the individual States.

For such decisive declarations we must turn to the decisions of the Supreme Court of the United States. Seizing upon three generally worded clauses of the Constitution this tribunal, presided over by justices, the majority of whom were nationalistic in sentiment, soon gave to the federal power such an interpretation as clearly to demonstrate that henceforth sovereignty in the American State was to reside in the Union. The three constitutional clauses thus utilized were the following:

1. "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." (Art. VI, Sec. 2.)

2. "The judical power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The

judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." (Art. III, Secs. 1 and 2.)

3. "The Congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof." (Art. I, Sec. 8.)

The first of these clauses was made to mean that whatever exercise of federal power the Supreme Court of the United States should decide to be consti

tutional, the people and governments of the individual States should accept as legally binding, and whatever acts of the States it should hold unconstitutional they should consider as null and void. The second of these clauses was made to give to the federal court full jurisdiction to consider all questions of conflict between the federal and state authorities. The third was employed to enable that tribunal to sanction the exercise by the Federal Government of a range of powers sufficient to enable it effectively to perform its functions as a sovereign, National State.

One of the very first laws passed by the federal legislature was the famous Judiciary Act which created the inferior federal courts authorized by the Constitution and outlined both their fields of jurisdiction and the appellate jurisdiction of the Supreme Court. To the importance of the twenty-fifth section of this Act which provided for a final review by that tribunal of all cases decided in the highest courts of the several Commonwealths in which should be drawn into question the relative competences of the Union and of the Commonwealths, and in which the decisions of the States' courts should be adverse to the federal power, we shall later refer.

A liberal construction by Congress and the Executive of the powers of the Federal Government began almost immediately after the adoption of the Constitution, as was especially shown in the establishment in 1791 of a National Bank and in the appellate jurisdiction granted the Supreme Court. The constitutionality of the exercise of these powers was vigorously denied by those who objected to such an increase

of federal power and influence, but the first open threat of resistance to the National Government was in 1793. This was brought about by the assumption by the federal Supreme Court of jurisdiction to hear and determine a suit brought against the State of Georgia by a citizen of another State, and the actual rendition by it of a judgment against that State (Chisholm v. Georgia, 2 Dallas, 419). Many of the States took immediate alarm at this decision, not simply because they had debts the collection of which might thus be enforced against them, but upon the political ground that thus to hold them amenable to suit was a practical denial of that sovereignty which they claimed still to possess. That they were fully justified in attaching this significance to the decision is shown in the words of Justice James Wilson, who in the opinion which he rendered in the case, said: "This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and may, perhaps, be ultimately resolved into one no less radical than this-'do the people of the United States form a nation?" Answering this question, Wilson declared: "As to the purposes of the Union ... Georgia is not a sovereign State."

After the rendition of this decision the State of Georgia declared her intention of refusing to allow it to be enforced, and passed a law threatening death