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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, necessarily, 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 Commonwealths 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.

To meet this argument, the advocates of national supremacy in this country have been led to propound a variety of theories and statements of fact. By some it has been alleged that, even if it be admitted that at the time of the adoption of the Constitution the States were severally sovereign, and were, in fact, the parties by which that instrument was established, still the record which we have of the intentions of those who drafted it, and of those who were influential in its ratification, reinforced by a rational interpretation of its own words, demonstrates that the States intended to, and actually did, in that agreement, surrender up and forever quit-claim every right or title. to future sovereignty; which sovereignty was henceforth to be vested in the government and State therein provided for. This, to our surprise, is substantially the position assumed by one of the latest commentators upon our constitutional law, Mr. Roger Foster.1

The illogical character of this theory is sufficiently obvious. In the first place, it assumes what we have seen to be an impossibility, the voluntary subjection of a State to an absolute legal control of another power by an agreement between itself and other sovereign powers. In the second place, it considers the adoption of a written Constitution as creative of a State, whereas, in fact, as we have learned, a Constitution is necessarily the creation of a preëxistent State, and is merely the instrument wherein that State provides for its governmental organization and for the distribution of its political power.

1" Commentaries on the Constitution of the United States" (1895), Vol. I, § 15.

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A second and more logical manner in which the position of the States' Rights school has been met has been by the assertion, either that the individual members of our Union never were severally sovereign and independent States, or that, if they ever were, they were not such in the years 1787-89, or that if they were then sovereign, it was not they, but the people of all the States as a single sovereign aggregate, who established our present Federal State.

That the States never were severally sovereign and independent bodies politic has been widely asserted by public men, as well as confidently stated by such constitutional-law writers as Story, Pomeroy, Von Holst, and Lieber, and, though less explicitly, by Cooley and Hare. Finally, in the comparatively recent work of Professor Burgess on "Political Science and Constitutional Law," we find taken substantially the same position. On page 100 of the first volume he says of the First Continental Congress that it "was the first organization of the American State." "From the first moment of its existence," he continues, "there was something more upon this side of the Atlantic than thirteen local governments. There was a sovereignty, a State, not in idea simply or upon paper, but in fact and organization."

The difficulty experienced by all these writers who maintain the sovereignty of the National Government from the time of the severance of our colonial connection with England, is to explain the status of the Union during the period when the Articles of Confederation were in force. The non-sovereign character of the Central Government established by these Arti

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