Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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STATE SOVEREIGNTY

III.218.1

STATE SOVEREIGNTY (IN U. S. HISTORY), the theory of the relation of the states to the Union on which was based the right of secession. It held that all the rights and powers of sovereignty were vested in the thirteen states, or commonwealth, which originally formed the American Union; that the peoples of these commonwealths had authorized their state governments to form the confederation in 1777-81 and the constitution on 1787-9; that the peoples of the individual commonwealths thus formed a voluntary union, retaining to themselves the whole essence of sovereignty, but yielding to the new federal government certain of the insignia of government, previously held by the state governments; that the people of any state, by withdrawing from the federal government its grant of powers, ipso facto dissolved the only bond which united them in a continuously voluntary union with the other states; and that there is, and can be, no "sovereignty" in the people of all the states, considered as a nation, in internal affairs, and no insignia of sovereignty in foreign affairs, except what is granted to the federal government by the real sovereignties, the peoples of the individual commonwealths, or states. The above is the doctrine of state sovereignty pure and simple, as it includes the right of secession. There is a much more popular and far milder doctrine, of which Madison was the strongest supporter: it holds that the states were sovereign until the ratification of the constitution; and that they then ceased to be entirely sovereign, a government partly national and partly federal taking their place. A variety of the first theory was also upheld, particularly in 1861-5: it held that the states were still truly sovereign, but that their international responsibility and comity forbade them to secede even from a voluntary union on trivial grounds, and authorized the other states to war upon them and compel their return.

III.218.2

—In considering the question it is as well to begin by examining the word sovereignty itself, though examination must be brief. Mr. John Austin defines it thus: "If a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior)is a society political and independent. To that determinate superior the other members of the society are subject. * * The mutual relation which subsists between that superior and them may be styled the relation of sovereign and subject, or the relation of sovereignty and subjection." This carefully guarded definition evidently implies that sovereignty resides in some small class, and it will settle the question of the sovereignty of the dukes of Burgundy in the middle ages, or of the princes of Servia in modern times. But its fundamental idea must be modified in the United States, where every governmental agency is supposed to be "in the habit of obedience" to the will of the people, expressed in written constitutions. The question for us must be , whether the people of the state, the commonwealth, or the people of the nation, has been habitually superior when it has seen fit to declare its will. This will show us whether the ultimate sovereignty, the absolute independence of action in domestic and foreign affairs, the uncontrolled power of decision in the last resort, is in the people of a state or in the national people.

III.218.3

—No theory of the nature of the American Union can be suggested against which arguments from authority, from the declarations and opinions of leading men, legislative bodies and conventions, can not be levied in array. The feeling of the American people has always been so strongly individualistic, their conventions and legislatures have been so much inclined to put confidence in their own assertions without regard to opposing facts, and their public men have been so influenced in feeling and language by their environment, that it is not difficult to bring arguments from authority in support of every variety of theory. This series of articles, relying on the facts of our history, and practically disregarding authority, is founded in a belief opposed to all the theories above enumerated: that the Union is not "voluntary," in the sense implied in state sovereignty that it has always been compelled by force of circumstances, common interests, and everything that goes to develop a national will and make up a nation; that the nation has existed, by its own will maintained by arms, since the first shot was fired at Lexington; that it has since continually asserted its existence with a steadily growing certainty of success; but that the expression and assertion of its existence is limited, according to its own will and the political instincts of the people, by the controlling necessity for preserving state lines, state government and "state rights," properly so called. (See CONGRESS, CONTINENTAL; DECLARATION OF INDEPENDENCE: NATION.) This article will therefore be confined to 1, the leading arguments for state sovereignty, as advanced by its supporters; 2, the historical arguments against it; and 3, "state rights."

III.218.4

—1. The word "people" is the x of American political algebra. All parties agree in the assertion that sovereignty is inherent in the people, not in the government; and in so far the unanimity of belief is almost startling, considering the diversity of results to which it has led. But the unanimity disappears as soon as we undertake to define "the people" Is it the people of all the states, of the nation, that is sovereign? Is it the people of each individual state that is sovereign? Jefferson Davis and his associates in 1861 held the latter view, and each, when the sovereign people of his state declared for secession, obeyed the behest of the only "people" known to him, even to the waging of war on the United States. The dominant party of the north and west held the former view, and justified the people of the nation, through its constituted agents, in suppressing rebellion by war. The democratic party of the north and west generally supported the war measures of the government, but did so on the ground of the third doctrine above mentioned, that the government was the agent of the non-seceding states in offsetting by war the unfriendly act of secession. If the doctrine of state sovereignty is correct, if each individual state is the only nation which its citizens can know, the southern states in 1860-61 undoubtedly exercised a constitutional and inalienable right in seceding, if they believed that the welfare of their citizens and their own preservation would be imperiled by remaining in the Union; and the suppression of the rebellion was a revolutionary transformation of a voluntary into an involuntary Union. And the argument of southern writers in favor of state sovereignty is, in general, as follows.

III.218.5

—1. They direct attention to the slow and steady growth of the states along the Atlantic coast, the nucleus of each being widely separated from the others, and none of them ever mingling with its neighbors or losing its own identity; to the fact that each had its distinct government, the king being the common executive; and they conclude, that, when the connection between the colonies and the king was "severed by rebellious swords, each colony became a living soul, and each necessarily possessed sovereign political will over its own territory and people." In support of this assertion their appeals are mainly to authority; and if this form of argument could be accepted as conclusive, the doctrine of state, sovereignty would be very strong. The word "People" as used at the time, was almost invariably applied to the people of a state; and the people of all the states are loosely referred to as "the continent," "the generality," "America in general." When independence was finally declared, the instrument was carefully entitled "The unanimous declaration of the thirteen united (sic) States of America," showing that "thirteen independent wills became unanimous on the great occasion"; and in declaring the independence of "the states" these bodies are always referred to in the plural: "that as Free and Independent States they have full Power to levy War, conclude Peace, contract Alliances, Establish Commerce, and to do all other Acts and Things which Independent States may of right do." The idea may be indicated by the full title of Dr. Ramsay's "History of the Revolution of South Carolina from a British Province to an Independent State" And the language of the constitutions adopted by the several states during the revolutionary period is even stronger in the same direction. "The people of this state, being by the providence of God free and independent, have the sole and exclusive right of governing themselves as a free, sovereign and independent state; * * That this republic is and shall forever be and remain a free, sovereign and independent state." (Connecticut act of 1776, establishing the charter as a constitution, preamble and article 1.) "The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent state". (Massachusetts constitution of 1780, still in force, art. 4.) "This convention, therefore, in the name and by the authority of the good people of this state, doth ordain, determine and declare that no authority shall, on any pretense whatever, be exercised over the people or members of this state but such as shall be derived from and granted by them". (New York constitution of 1777. art. 1.) "That the style of this country (sic) be hereafter the state of South Carolina". (South Carolina constitution of 1778, art. 1.) When we add to such expressions as these the emphatic caveat of the second of the articles of confederation, "each state retains its sovereignty, freedom and independence," the whole makes up a formidable mass of contemporary testimony in favor of the "sovereignty" of the individual states; and it is re-enforced by the unconscious and ingenuous testimony given by the almost invariable language of men of the time in official and unofficial positions. And, finally, in the treaty of peace which closed the war, the high contracting parties joined in declaring, not that the United States as a nation was independent, but that the several states, Naming them in order, were "free sovereign and independent states".

III.218.6

—But, after all, what is all this argument from authority worth more than the impotent protests of a drowning man in the midst of a resistless current? His declarations that he will not drown can hardly save him without the added exertion of swimming. If "sovereignty" could be maintained by resolutions alone, the argument from authority would be of weight; but neither is true. Reams of resolutions would be of little avail in maintaining the "sovereignty" of Ireland or Poland, unless the resolvers are ready to back their resolutions by physical force; and no such readiness was ever shown by the individual states. Massachusetts came nearest to it in the sudden levy of troops and siege of Boston which followed the fight at Lexington; but even Massachusetts, while fighting the enemy with one hand, was with the other beckoning to the nation for help, and her delegates, as soon as the continental congress met in the following month, successfully urged the adoption of her troops as a "continental army". In resolutions the states were prolific: when it came to war, the highest and most dread attribute of "sovereignty", all instinctively shrank back, and pitted the true nation against a king, sovereign against sovereign. The mass of evidence above summarized goes just far enough to prove that the individual states were sovereignties in posse; and had any one of them ever ventured on the next essential step, and maintained its separate sovereignty by physical force, no sane man could have denied that it was at last a sovereignty in esse. But this last step has always been wanting, and, while that is the case, all is wanting. That states, thus cowering like frightened chickens under their mother's wing, should have gone on calmly ignoring in words their mother's existence, and asserting by resolution the sovereignty which they dared not maintain by force, only shows the inability of even the wisest men to see clearly all the phases of contemporary history. That able men should still argue that a sovereignty in posse can be transformed into a sovereignty in esse by such a cheap and easy weapon as a resolution, only proves that prejudice is still frequently of stronger weight than obvious fact. That the nation should have quietly tolerated such open denials of its very existence, only proves the national indisposition to apply unnecessary force. An imperator or a czar must suppress the least impeachment of his sovereignty: the American republic will still calmly allow even an open denial of its existence—always provided that the denial is confined to theory.

III.218.7

—But it must not be supposed that the argument from authority itself is so overwhelmingly in favor of state sovereignty as the summary above would imply. We may pass by the unofficial exhibitions of national spirit in revolutionary times, and still have a reserve force of authority to show the universal consciousness that the controlling, though always self-controlled, power was in the national people. Congress, in its declaration of July 6, 1775. says: "We exhibit to mankind the remarkable example of a people [not of thirteen peoples] attacked by unprovoked enemies". The same body formulates its proclamation of Dec. 6, 1775, thus: "We, therefore, in the name of the people of these United Colonies"; and thus begins its declaration of July 4, 1776: "When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature's God entitle them". This last step, this assumption of a separate and equal station among the powers of the earth, is the only means by which "sovereignty" can properly be asserted; and it never has been so asserted by a single state. The real national revolutionary nature of the declaration, and the subordinate part played by the states in it, are well stated in the address of congress to the people, Dec. 10, 1776: "It is well known to you, that, at the universal desire of the people, and with the hearty approbation of every province, the congress declared the United States free and independent". If we are to trust authority, we may cite the sweeping assertion of Charles Cotesworth Pinckney, Jan. 18, 1788: "The separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed the declaration of independence, the several states are not even mentioned by name in any part of it." And no man in the South Carolina legislature at that time said him nay when he denounced the claim, "that each state is separately and individually independent, as a species of political heresy."

III.218.8

—Again, in its commission to its ambassadors to France, Oct, 23, 1776, congress remarks: "A trade upon equal terms, between the subjects of his most Christian majesty and the people of these states will be beneficial to both nations"; and the ultimate treaty of Feb. 6, 1778, refers regularly to "the two parties" or "the two nations." The treaties with the Netherlands, Sweden and Prussia, in 1783-5, use the same phrases. Nor did congress hesitate to bring the national power into plain view, when necessary. Dec. 4, 1775, it resolved that "in the present situation of affairs, it will be very dangerous to the liberties and welfare of America, if any colony should separately petition the king or either house of parliament." Dec. 29, 1775, it resolved that "the colonies of Virginia, Maryland and North Carolina be permitted to export produce to any part of the world, except Great Britain," etc. Finally, May 15, 1776, the congress recommended the various assemblies and conventions of the colonies "to adopt such government as shall in the opinion of the representatives of the people best conduce to the happiness and safety of their constituents in particular and America in general"; and the national power which thus brooded over the state governments themselves is indicated in an address of congress to the people of the United States, May 8, 1778: "Your interests will be fostered and nourished by governments that derive their power from your grant." Even the state constitutions which declare the sovereignty of the state show the underlying consciousness of the delegates that a national power was in existence, though it was more prone to show itself by acts than by words. The constitutions of Delaware, Georgia, New Hampshire, New Jersey, New York, North Carolina and Pennsylvania, all refer expressly to the previous action of congress, and particularly to its resolution of May 15, 1776, as the justification of their action: and the four state constitutions (of Massachusetts, Maryland, Virginia and South Carolina) which do not expressly refer to it, do so tacitly by their long delay until congress took the initiative. The preamble of the South Carolina constitution of 1778 even assigns, as a reason for a new constitution, that "the United Colonies of America have since been constituted independent states * * * by the declaration of the honorable the continental congress, dated the 4th day of July, 1776." But the first constitution of South Carolina, March 26, 1776, strikes the deadliest of all possible blows at the theory of state sovereignty, whose essential dogma is that the United States exists in a state only by the continuing will of the state. On the contrary, article twenty-eight of this constitution declares that "the resolutions of the continental congress, now of force in this colony, shall so continue until altered or revoked by them [congress]." The resolutions of the national congress in force in South Carolina, prior to any declaration of the "sovereign" will of South Carolina! Certainly Calhoun had no hand in framing this constitution.

III.218.9

—Having stated the arguments, pro and contra, this article can only conclude that the arguments from authority are quite evenly balanced, but that the argument from fact is overwhelmingly against "state sovereignty." The states declared themselves sovereign over and over again; but calling themselves sovereign did not make them so. It is necessary that a state should be sovereign, not that it should call itself so, while still sheltering itself under a real national authority. The nation was made by events and by the acts of the national people, not by empty words or by the will of sovereign states; but the sovereign will of the nation has always been that there should be states, that the people should act politically through them, and that their rights and privileges should be respected.

III.218.10

—2. If the argument from fact, that the separate states were never more than sovereignties in posse, and that they never ventured to become sovereignties in esse, is sound, it, of course, disposes of state sovereignty not only in the birth of the nation and in the formation of the confederation, but in the adoption of the constitution also. If a sovereignty was created by general and national obedience to the resolutions of a revolutionary national assembly, unlimited by any organic law; and if that sovereignty was maintained by a successful national war, there is no argument to the contrary in the fact that the new sovereignty allowed its agents, the state governments, to shape the articles of confederation, and to appoint delegates to the convention of 1787. The national sovereignty thus created might have disintegrated and died; New York or Virginia might have broken away and sustained herself as a sovereignty in esse as well as in posse; but there was in fact no such result. The national feeling held the nation together, and forced the unwilling state governments to stand sponsors to a new national assembly. Such a body was the convention of 1787. It could not have been an assemblage of ambassadors from sovereign states, for, as is noted hereafter, no state constitution ever purported to give its legislature power to send such ambassadors or make such a treaty, and no governor even ventured to assume such a power. And the convention, when it met, proved its national character by disregarding altogether the articles of confederation, which were never to have been even amended, except by unanimous vote of all the legislatures: and by giving the ratification of the new form of government to state conventions, not even allowing the legislatures a voice in the matter.

III.218.11

—Nevertheless, state sovereignty adduces a great mass of argument from authority in all the transactions which led to the adoption of the constitution, and in the constitution itself. The convention itself struck out the word "national" from the first resolution proposed to it, "that a national government ought to be established." Its debates are marked by frequent use of expressions relating to the sovereignty of the states. "That the states are at present equally sovereign and independent has been asserted from every quarter of this house," said one delegate. The expression "We, the people of the United States", in the preamble to the constitution, and the omission of the names of the states, are usually cited as decisive proofs against state sovereignty. Undoubtedly the people of the nation were making the constitution, but it is very doubtful whether many of the delegates were aware of the fact: most of them probably still applied the word to the people of their own individual state, and felt, as the "Federalist" (No. 39) expressed it, that "each state in ratifying the constitution is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act". The omission of the names of the states seemed decisive to so respectable an authority as Mr. Motley, but unluckily the omission cuts the other way. In the first draft of the constitution, as reported by the committee, Aug. 6, 1787, the preamble reads, "We, the people of the states of New Hampshire, Massachusetts", etc. [naming them in order], and the names were left out in the final draft from the apprehension that one or more of the states named might, by virtue of its supposed "sovereignty", right the constitution, drop out of the Union, and compel an after alteration of the preamble. To the same effect is the seventh article of the constitution, as finally adopted. "The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same". What, then, was to be the status of the states which should refuse to ratify? Were they still in the Union, perhaps as territories? Or were they to secede from the Union? Or had the other states already seceded and left them to keep warm the ashes of the old confederation, if they could? Was the constitution itself a successful secession from the confederation? or did it only provide for necessary secession in this seventh article? Such questions as these have always had an obvious fascination for the advocates of state sovereignty, while their opponents have usually avoided both Scylla and Charybdis by going overland and ignoring them altogether. But, in any candid discussion of the subject, they must be met and answered; and, in order to answer them, the effort has been made to state them fairly and strongly.

III.218.12

—Such questions, with their tacit implication that "sovereignty" is a mere affair of words, that any body of men, in order to be sovereign, has only to call itself, or be called, sovereign, afford silent but weighty testimony to the peculiar natural advantages which the American people enjoy, and have always enjoyed. If the proximity of more powerful neighbors had ever compelled the American people to sacrifice one or more states or parts of states as the price of a treaty of peace, the fallacy of state sovereignty would have been exposed. But this has never been necessary, except in the partial example of Maine in 1842 (see MAINE); and annexation, which is the complement of such territorial sacrifice, is always ignored by the advocates of the doctrine. Free from dangerous neighbors, the American people did not, until 1861, learn the truth which bitter experience had made familiar to less favored quarters of the globe, that sovereignty is always potentially an affair of "blood and iron"; and that it needs not only men who know, or think they know, their rights, but men who, "knowing, dare maintain". Sovereignty is indivisible, as any controlling will is indivisible. As between the nation and the states, the only question must be, Which was the sovereignty? And it can only be answered by asking. Which dared to go alone, to carve out its own path, and achieve its own destiny? The question answers itself. Two states, Rhode Island and North Carolina, refused to ratify, and the constitution went into force without them. There could have been no more excellent opportunity than this to convert a sovereignty in posse into a sovereignty in esse; but this first and last test for sovereignty compelled each of these states to answer, "It is not in me". Within two years both were confessedly in their natural places as part of the nation, both had ratified the constitution nominally as their voluntary act and deed, but actually, like other states, under stress of circumstances. We can not know how far Rhode Island was influenced by unofficial propositions to carve up her territory between Massachusetts and Connecticut, or how far North Carolina was influenced by official propositions in congress to suppress or restrain her commerce with the neighboring states. (See SECESSION.) We can only see the patent fact that these two states had and shrank from the opportunity to attempt to become sovereign in very truth.

III.218.13

—But the constitutional phrase, "between the states so ratifying the same", brings up the further question, Where were Rhode Island and North Carolina between March 4, 1789, and their respective ratifications in 1789-90? Were they in or out of the Union? Unless the nation existed, and these states were still a part of it, we are completely at sea. The nation which had by successful war extorted from Great Britain a recognition of its boundaries, would not have been slow upon occasion to compel Rhode Island and North Carolina, and Vermont as well, to respect those boundaries, and to recognize themselves as included within them. But no such occasion arose, and no argument can fairly be drawn from a forbearance of the nation to enforce its sovereign will. Failure to overcome an open defiance would have been a different matter; but a father's authority is not to be fairly impeached from his forbearance in allowing a recalcitrant son an hour for consideration. In point of fact, Rhode Island and North Carolina finally ratified the very constitution which they had at first rejected, without a single amendment to commend the chalice to their lips. There was no escape for them: they had to ratify; but the forbearance of the nation gave them an opportunity to do so "voluntarily". That the new scheme of government should have been defeated by the will of two states, or that these two should remove themselves without successful war, from the boundaries fixed in 1783, would have been equally impossible; but the nation had been guilty of an oversight in allowing state legislatures to form the articles of confederation, with their absurd provision for a unanimous ratification of amendments, and the nation scrupulously atoned for its oversight by forbearing to press even the weakest of its states. There is of course a still stronger argument drawn from the nature of the constitution, but that will best be considered under the second head of this article.

III.218.14

—It would be unfair to deny that the various conventions which ratified the constitution in 1787-90 considered themselves as acting for "sovereign states". The debates of the Virginia convention show that the word "people" meant the people of the several and individual states, and not of the nation, in this declaration, which was a part of the ratification: "That the powers granted under this constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression"; and these words, in their literal meaning, have the essence of the doctrines both of state sovereignty and secession. But these words, again, are mere "authority", void as against facts. Whose was the uncontrollable will, the sovereignty, that extorted ratification from an unwilling majority in Virginia, New York, New Hampshire and Massachusetts, and, later, in Rhode Island and North Carolina? Was it the will of any state? or was it the will of the nation, acting, according to its own preference, through state organizations? The question answers itself, provided the questioner will confine himself to the facts of our history, and turn a deaf ear to the conflicting arguments from authority, the opinions, sometimes correct and sometimes incorrect, of the actors in the history. But the question is often triumphantly asked, What would have happened if a part of the states had refused finally to ratify? Either the recusants would have left the constitutional number of ratifying states (9), or less than that number. In the latter case the condition placed upon ratification by the national will would not have been fulfilled; and the whole scheme of the constitution would have failed. In the former case, the pressure upon the recusant states would have been gradually increased until the alternative of ratification or force would have been distinctly presented. In either event, that of general confusion or that of the forcible maintenance of the national will, the sword, the ultima ratio of sovereignty, would have made its appearance; and, whatever the result of the struggle might have been. "state sovereignty" would certainly have received before 1800 the quietus which it finally received in 1865. One sovereignty, or two, or three, might have emerged from the chaos, but state sovereignty, and even state rights, would hardly have survived. In this point of view the ratification debates of 1787-9 show the usual contradiction between authority and fact, between the constant assertion of state sovereignty and the ever-present fear that force might dispel the illusions of the assertion. A contemporary tradition is, that Washington, while signing the constitution, thus struck the key-note of this feeling: "Should the states reject this excellent constitution, the probability is that an opportunity will never again offer to cancel [substitute] another in peace: the next will be drawn in blood". "I fear a civil war", said Gerry. "Apprehending the danger of a general confusion and an ultimate decision by the sword, I shall give the plan my support", said Charles Pinckney. "Is it possible to deliberate between anarchy and convulsion on the one side, and the chance of good to be expected from the plan on the other"? asked Hamilton. "Suppose", said Thompson, in the Massachusetts convention, "nine states adopt this constitution: who shall touch the other four? Some cry out, Force them. I say, Draw them". In the Virginia convention Patrick Henry unconsciously drew a pregnant parallel between the forbearance of the nation in forming the confederation and in forming the constitution: "During the war America was magnanimous. What was the language of the little state of Maryland? 'I will have time to consider. I will hold out three years. Let what many come, I will have time to reflect.' Magnanimity appeared everywhere. What was the upshot? America triumphed". (See TERRITORIES.) Where was the sovereignty, then, the uncontrollable, though self-controlled and "magnanimous", power in the cases of Maryland under the confederation, and of Rhode Island and North Carolina under the constitution? Finally, Dec. 14, 1787, in a public letter, Washington used the following language, which sums up the case against state "sovereignty" in framing the constitution: "should one state, however important it may conceive itself to be, or a minority of the states, suppose that they can dictate a constitution to the majority , unless they have the power of administering the ultima ratio, they will find themselves deceived."

III.218.15

—As a summary, we may say that the ratification of the constitution by the conventions of six of the states, New Hampshire, Massachusetts, Rhode Island, New York, Virginia and North Carolina, was not at all voluntary; that it was extorted by the evident preponderance of the national will, including minorities in their own states, as well as majorities in other states, and by a fear of arraying a pseudo sovereignty against a real sovereignty; that the whole process was a national act; and that the strongest arguments from authority can not avail against the facts of the case. Nevertheless, there is one expression of opinion which should be cited here, not as an argument from authority, but as giving exactly and tersely the writer's belief. It is that of James Wilson, in the Pennsylvania convention of Dec. 4, 1787. "My position is, that in this country the supreme, absolute and uncontrollable power resides in the people at large; that they have vested certain proportions of this power in the state governments; but that the fee-simple continues, resides and remains with the body of the people". He who asserts the contrary, who holds that the will of a state is, or has ever been, uncontrollable, must prove it by adducing facts, not opinions, whether contemporary or subsequent to the revolution.

III.218.16

—3. After 1789 state sovereignty entered upon the seventy-five years struggle with the national idea which ended in 1865. (See KENTUCKY RESOLUTIONS; CONVENTION, HARTFORD; JUDICIARY; ALLEGIANCE; NULLIFICATION; SECESSION; RECONSTRUCTION; NATION.) Throughout this struggle almost every state in the Union in turn declared its own "sovereignty", and denounced as almost treasonable similar declarations in other cases by other states. Where these declarations stopped, and were intended to stop, at naked assertion, they come properly under our third head of "state rights". In this form they have always been common, and probably will again be common, though they have much decreased in frequency since 1865. So late as March 19, 1859, on the occasion of a supreme court decision against the Wisconsin "personal liberty law" (see that title), the state legislature passed a series of resolutions, the last of which spoke the following strong language. "that the several states which formed that instrument [the constitution], being sovereign and independent, have the unquestionable right to judge of its infractions; and that a positive defiance by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy". References to sovereign states and the sovereignty of the states have since been by no means unusual in legislative resolutions and judicial decisions. A good example is in the message of Gov. Robinson, of New York, June 14, 1878, vetoing a bill to enable creditors of other states to sue through New York state officers: "It requires the state to lay down its dignity, its honor and its integrity as a sovereign state of the Union, and to become a collecting agent for speculators in state bonds". In none of them has there been any apparent notion of a possible maintenance of the so-called sovereignty by force in case of opposition to it. We are interested only in the cases where this final test of sovereignty has been brought in question. It is fairly doubtful whether the New England opposition to the embargo and the war of 1812 fails in the former or in the latter class. The probability is that it really meant state sovereignty to a few of the leaders, but only state rights to the mass of the leaders and followers. The action Pennsylvania in the Olmstead case, in 1809, and of Georgia in the Cherokee case, in 1830-32 (see that title), inclined toward the forcible maintenance of the state's will. In the former case the national authority was enforced, and in the latter it was yielded. South Carolina's nullification of the tariff act in 1832 fulfilled every requisite of the theory of state sovereignty by employing a formal state convention to declare the uncontrollable will of the state. This was therefore the first fair and open attempt in our history to maintain the doctrine to its logical consequences, and it was a failure. The inability of the state to maintain its ground was so evident that an unofficial assemblage suspended the sovereign will of the state to a point beyond the designated time. From this time state sovereignty became inextricably blended with slavery, until the growing union of both ended in secession in 1860-61. (See SLAVERY, SECESSION.) It is very true, as most southern writers assert, that the fundamental issue on which the seceding states waged war in 1861-5 was the maintenance of "the right of self-government", that is, of state sovereignty; and that, in comparison with this, slavery was of little importance. It is true, that, when a state had once pronounced its will to secede, both the supporters and the opposers of secession felt bound to maintain the will of the state, even to the extent of war against the United States. But it is equally true, that no such issue would ever have been presented but for slavery and its progressive influence in arraying the will of the state against the will of the nation. When the issue was at last presented, it could no longer be avoided. There was no room for forbearance, or, as Patrick Henry termed it, "magnanimity"; sovereignty was brought to the touchstone, and state sovereignty was found wanting.

III.218.17

—In the subsequent process of reconstruction (see that title), there was very much that was at variance not only with state sovereignty, but with state rights as well. The power over the militia, the elective franchise, the state courts, and the police regulation of cities and towns, which the universal national will decrees to be in the states, was for a time withheld from the lately seceding states. If this was intended in any way as a certificate of burial for the defunct theory of state sovereignty, it served the further purpose of bringing into plainer view the healthy doctrine of state rights; for the punishment was so abhorrent to the national instincts that it was very rapidly abandoned. Out of all the struggles of the past has come the unanimous will of the nation, equally opposed to state sovereignty and to centralization, that it shall be an indissoluble Union of indestructible states.

III.218.18

—II. Under the first head the effort has been made to show the baselessness of state sovereignty from the single historical fact that the will of the nation has always been the controlling power, though it has always been forbearing in non-essentials. It is necessary further to adduce some other more isolated facts, all showing that the states were never sovereigns.

III.218.19

—1. It is essential that a sovereignty should have complete power of independent action in external affairs as well as in internal affairs. Foreign nations, in their intercourse with a state, look, not to assertions of sovereignty, but to the fact, and regulate their recognition and diplomatic relations accordingly. What are we to think of a "sovereignty" that never declared or waged a war, never concluded a peace, never sent or received an ambassador, never flew a recognized flag, and never formed a treaty or an alliance? And yet this is the history of nearly if not quite all the states. The few exceptions, the New England union (see that title), the Indian wars and treaties of New England and the south, the pine tree flag and coinage, were sub rosa appropriations of the insignia of sovereignty, unrecognized by any others than the appropriators, and most of them occurred in colonial times, when sovereignty, other than the king's, was unthought of. Even when the colonies became states, the usual American political sense showed itself through all the declarations of state sovereignty: none of their state constitutions purported to give the state governments any of the powers above enumerated, nor was this withholding of power the consequence of any agreement in the articles of confederation, for all the state constitutions were framed before, most of them five years before, the articles of confederation went into force. It was the consequence of the instinctive national sense that these belonged to the real sovereignty, the nation. There is a single remarkably exception, the twenty-sixth article of the South Carolina constitution of 1776: "That the president [governor] and commander-in-chief shall have no power to make war or peace, or enter into any final treaty, without the consent of the general assembly and legislative council." But even this (unaltered until 1790) must be taken as only an argument from authority, since the implied treaty power of the state was never maintained in fact.

III.218.20

—2. The states have nowhere shown their lack of the essentials of sovereignty more conspicuously than in their self-confessed inability to stand alone. At the very outset of the struggle between the nation and the king, in 1775, the boldest of the states, Massachusetts, was the loudest in calling upon the continental congress for help to maintain her integrity. The first state to form a constitution, New Hampshire, did so only after seeking the patronage of congress, and all the other states, except South Carolina, waited, before taking the same step, for the general recommendation of congress, May 15, 1776, referred to above. In the articles of confederation each state legislature undertook to covenant with all the others for protection. This was found to be too weak a safeguard, and the nakedness of state sovereignty was fully exposed in the adoption of the constitution: "The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion and * * * against domestic violence." Even in 1861 the seceding states, which so loudly declared their sovereignty, were at the same time contradicting the assertion by their instinctive efforts to form a new nation for the protection of state sovereignty. A sovereignty incapable of self-maintenance, and always under the protection of a higher power, is a contradiction in terms.

III.218.21

—3. A still stronger objection is the nature of the governments, whether they be called federal or national, which have been formed in, for and by the Union. The first, or revolutionary, government of the continental congress, was absolutely opposed to state sovereignty. The armies which were mustered, the navies which were created, the war which was waged, the flag which was displayed, the treaties which were made, and the debt which was contracted, were all exclusively national, and depended for their credit on the will of the whole people. Congress even showed its national nature by declaring independence without the assent of New York, and by practically making Washington dictator in 1777. Even the articles of confederation, though they declared the sovereignty of each state, contradicted the assertion by leaving the insignia of sovereignty to the national government. When we come to the constitution, the objection becomes absolutely insuperable. The prohibitions upon the states in section 10 of article 1. are all prohibitiors of the exercise of sovereign powers; the states, then, were not in fact regarded as sovereignties, either by themselves or by others. The same argument can not be applied to the preceding section, prohibiting the exercise of certain powers by the United States; for these are all matters of routine, not sovereign powers. Under the constitution the states were not to have even the appearance of sovereignties: the powers to declare war, to make peace, to conclude treaties, to suppress insurrections, and to punish treason, were now placed where they belonged, in the national government. If states formed the constitution, they stultified their own assertions of sovereignty. The conclusion must be, not that states, state governments or the federal government is sovereign, possessed or uncontrollable power, but that the people of the nation, divided by its own will into states, is sovereign.

III.218.22

—The idea that the sovereignty of the states was only suspended by the formation of the constitution, ready to be revived at any moment by the will of the state, though it was the general southern doctrine after about 1803 (see SECESSION), is altogether too fine spun for practical use or recognition. The idea of a comatose sovereignty, of a sovereignty which sleeps like Rip Van Winkle, but wakes at the exercise of its own suspended will, of an uncontrollable will which still exists though it has resigned its essence to another, of an abdicated sovereign peaceably reviving its own sovereignty, is certainly an extraordinary political dogma; and its evident fallacy is enough to disprove the notion that the states were ever sovereign.

III.218.23

—Above all, the provision for amendment by three-fourths, not by all, of the states, is a flat negative to state sovereignty. There is, with the obsolete exception of the retention of the slave trade until 1808, and with the always controlling retention of state lines, no limit upon the power of amendment. Can we imagine real sovereignties not only "suspending" the exercise of their own wills on points certain, but agreeing to accept as their own the unlimited and indefinite future will of three-fourths of their associates? And yet the only alternative for state sovereignty is to imagine the states as making the agreement without the intention of keeping it. This one provision for amendment is sufficient to outweigh all the arguments from authority that could be adduced.

III.218.24

—4. It is usually assumed that state sovereignty is essential to a federal government, and is only denied because of the desire to introduce the idea of a national or centralized government. In fact, the government is both national and federal: not, as the "Federalist" asserts, partly national and partly federal, by the will of the states; but together national and federal, by the will of the whole people. Powerful enough to have established the most centralized government, if it had been foolish enough to desire it, the national will has always, of its own motion, limited itself to such a government as the states should agree upon, a federal government. When the nation's first instruments, the state legislatures, proved unfit, the nation was strong enough to wipe out their work and substitute a better; but it still pledged itself to maintain the states intact, and to make no change in the constitution on which three-fourths of the states could not agree. This universal American predilection to a federal form of government has made it possible to argue in favor of the sovereignty of the original thirteen states, but the case is altogether different when we come to the sates which have been subsequently admitted under the constitution. So difficult is it to ascribe their existence to their own uncontrollable will, or to anything else than the uncontrollable will of the nation, that the advocates of state sovereignty here find (and evade) their Scylla and Charybdis. Take the state of Missouri as an example. Its territory was sold by France to a sovereignty, the United States, not to any or all of the states. It was bought by the nation as a sovereignty, not by any permission given by the states in a written constitution. Its original acquisition, its erection into a territory, its government as a territory, were alike the results of the national will. And when its population had grown sufficiently to justify hope of stability, the national authority regulated the formation of a state government, established its boundaries, and finally, in its own time and on its own terms, admitted the new state to the Union. Will any man be bold enough to specify where and when the sovereignty, the uncontrollable will, of Missouri came into this long process as a factor? To whom, then, do the people of Missouri owe what would still often be called their "sovereignty," the absolute power over their own affairs, which they have enjoyed since 1820, but did not enjoy before 1820? Evidently, to the national will. There is not a state, old or new, in this Union, whose will has been considered in the establishment of its own boundaries. The boundaries of the original thirteen states and of Vermont were fixed by the royal power and its agents; the boundaries of new states, and the rearrangement of the boundaries of the old states, have been fixed under the supervision of the new national sovereignty; and neither of these classes of pseudo sovereignties has ever had the power to add one cubit to its area of its own uncontrollable will. Indeed, one of them (Iowa) was refused admission until she would accept the boundaries which the national will had fixed for her. The only fair arguments to the contrary are Rhode Island and Texas. (See those titles.) But these were only apparent. The long resistance of the former to the encroachments of her neighbors was passive, not active; and the boundaries of the latter, which her own power had been unable to establish as she claimed, were finally fixed by the United States. Texas, indeed, is a good deal of an anomaly in her entrance to our system. An undoubted sovereignty previously, she was rather united to the Union than admitted to it. Some of the whigs, who were opposed to the admission, even claimed at the time that it was a fair question whether the United States had annexed Texas, or Texas had annexed the United States; that the junction of the two republics had properly abolished the constitutions of both, and vacated the offices of their respective presidents; and that a new constitution and a new president were necessary, for the new nation. But the overwhelming superiority of one of the two parties was taken as a sufficient offset for all legal informalities, and the "annexation" was consummated. Barring this anomalous case, the origin of state sovereignty in new states is a field of inquiry which the advocates of the theory of state sovereignty can not be induced to enter. The ablest and latest of them, in his "Republic of Republics," cited below, has a chapter of eight pages on "Sovereignty in the new states," in which the whole question is evaded carefully and successfully. Its only attempt at argument is in the closing sentences of the chapter: "Can you think, dear reader, of any political difference between Ohio and Connecticut, Virginia and Missouri, New Jersey and Texas, Georgia and California, as to status, capacity or rights?" And the answer must be: There is no difference; each and all owe their status, capacity and rights to the power which won them, by force or purchase, from Great Britain, France, Spain or Mexico, and which has since maintained them, the nation.

III.218.25

—In fact, state sovereignty is the deadliest of all enemies to a federal government. In a government without the federal principle, the entrance of the error is impossible, or extremely difficult. As soon as the federal principle enters, its parasite enters with it, and usually succeeds in destroying it. A permanent federal Union, based upon the uncontrollable will of the states which composed it, would be as impossible as permanent connection between man and woman without lawful marriage. The sovereign power of the nation, by the certainty which it gives to the bond, places in the category of the impossible countless grievances which, without a national power, would soon be magnified by state jealousy and state demagogues into good reason for dissolution of the bond. He, then, who denies state sovereignty, but upholds state rights, does so not in defense of the national power, which is perfectly able to defend itself, but in defense of the most beautiful and yet delicate of all schemes of government, the federal system.

III.218.26

—III. STATE RIGHTS. From 1800 until 1865 the phrase "state rights" looked directly or indirectly to but one of the supposed rights of a state, the right of secession. The political revolution of 1800 was caused very largely by the revolt of the mass of the people against the federalist idea that the federal government was sovereign, a very different thing from the assertion that the nation is sovereign. The new party that then assumed control of the federal government did so on the theory that the federal government was the servant of the states, and that the Union was wholly voluntary on the part of the states. This theory was summed up in the name "state rights democrat." In the north and west the theory had disappeared in reality long before 1860, and men in those sections who called themselves "state rights democrats" were hard pressed to reconcile their party name and their support of the war against the rebellion. In the south the name and theory were kept in complete sympathy by the multifarious influences of slavery until state sovereignty and slavery went down in a common overthrow in 1865. "State rights" may now take its proper signification, that which belonged to it in reality even while "state sovereignty" was given as its formal name.

III.218.27

—In reading the debates of the period from 1775 until 1789, no one can help noticing the peculiar way in which the word "sovereignty" is used. The same men who recognize at every step in fact the existence of a national sovereignty, continue to refer to the states as "sovereignties." The same Wilson, whose exact and satisfactory statement of the ultimate national sovereignty has been used above, speaks thus in another place: "The business of the federal convention * * * comprehended the views and establishments of thirteen independent sovereignties." And such apparent contradictions are not the exception, but the rule. "The American Statesman's Dictionary," says von Holst, "was written in double columns, and the chief terms of his vocabulary were not infrequently inserted twice: in the right-hand column, in the sense which accorded with actual facts, and was in keeping with the tendency toward particularism; in the left, in their logical sense, the sense which the logic of facts has gradually and through many a bitter struggle brought out into bold relief, and which it will finally stamp as their exclusive meaning." If they endeavored to "outdo the mystery of the Trinity by making thirteen one, while leaving the one thirteen," it was because they were conscious that the thirteen were thirteen by the will, protection and support of the one. It is by the citation of one member of each of these verbal contradictions, that the advocates of state sovereignty have built up their argument form authority, making the "fathers of the republic" the fathers of their theory, while ignoring the practical application by which the fathers aforesaid explained their apparent contradictions. The contradiction will disappear if we take in set terms what the fathers took in practice, that the states were not sovereign of their uncontrollable will, but that they possessed absolute power in their own sphere by the will of the nation. "State sovereignty" then takes its proper form of "state rights." The nation may diminish or enlarge the sphere of the states: it has repeatedly done both by amendments; but, whatever the sphere of the states may be, they are supreme within it. It may be said that this reduces the states to the rank of counties, but the objection will not hold. The will of a state, to which the nation has abandoned the control of cities, towns and counties, is easily expressed and exercised: but the will of the nation can only be expressed and exercised with such enormous difficulty that the states are practically safe from it, unless an unusually great emergency calls it forth. What present hope is there for any suggested amendment to the constitution? It may further be said that such a theory allows the possible establishment of a monarchy in the United States. Be it so: pray, who is to prevent it if the national will should incline to a step so foolish? He who assumes to prevent it must do so by force. Who could have prevented it in 1775 or in 1787-9, if the nation had willed it? The report was common in 1787 that a part of the convention's plan was to call an English prince of the blood to the throne of the United States. Had the report been correct, and the step been ratified, the only difference in the result would have been that Rhode Island and North Carolina would have felt from a selfish royal personality a pressure very different from the magnanimous forbearance which a republican government could afford to exercise. But the sovereignty would have been alike in both cases, and its exponent the same in kind, differing only in degree.

III.218.28

—And how in reality does this assail the dignity of the states, since it plants their authority on a base so broad as to be practically immovable? Federal government and state governments are alike exponents of the national will, and the effort to secede on the one hand, and to unconstitutionally oppress a state on the other, are alike defiances of the national will, though, if successful, the latter may be atoned for, while the former can not. It is notorious matter of fact, that, in a peaceable and legal struggle between the federal government and a state government, the national sympathy is rather with the latter than with the former; and the state government, supported by the consciousness of this general sympathy, and aided by its own greater intensity of interest, has a much greater probability of success. If the struggle verges toward a settlement by force, national sympathy for the state government decreases, until the distinctive federal authority is formally or actually acknowledged; and then the controlling national feeling shows itself by marking as a victim for political punishment any department or officer of the federal government that has been instrumental in thrusting upon a state the alternative of force or submission. The national will approved the federalist measures of 1798, the action of President Adams against Georgia in 1824, the nullification proclamation drawn up by Edward Livingston against South Carolina in 1832, and the forcible suppression of ku-klux disorders by the Grant administration in 1871-3; and in all these cases the national sympathy almost instantly showed itself against the authors of the acts which had been approved. Even in ordinary politics, there is no greater danger to an American administration than the well or ill founded belief that it is endeavoring to coerce the will of its own party in a state. "[American] men," said Hamilton, bitterly, "are rather reasoning than reasonable animals"; and the national devotion to a federal system must be fully taken into account by any one who would attempt to study American political history.

III.218.29

—And we can not doubt that the national feeling is justified by reason, by the events of the past, and by the probabilities of the future. It is so obviously impossible for any mere centralized government to consult wisely and well the diverse interests of California, Maine and Florida, as far apart in distance and climate as London, Teheran and Morocco, that the absolute necessity of the federal system is everywhere recognized without question. The people of each state feel that the principle on which their own happiness and comfort rest would be destroyed if they should connive at an encroachment by the federal government upon the sphere of another state. They know instinctively that in so vast a country the choice is between the federal system and disunion, for the most solidly based centralized government could not hold the nation together six months; and in the train of disunion come diplomatic relations, international wars, standing armies, and the subordination of the many to the few. Rather than admit the first appearance of such evils, they have denied to the states the power to recall their senators; rather than suffer the reality, they have surrendered the dearest prejudices of their nature, and conquered and reconstructed a protio of the states of the Union. They perceive that a federal system, so far from being in any need of state sovereignty, is injured by the first appearance of state sovereignty and the diplomatic relations implied in it; but that any abandonment or infringement of state rights is an insult and an injury to the nation, and a subtle attack upon the federal system, in which alone the nation can maintain its unity. And the lessons which the past has taught are of such a nature that the future can only add force to them. State sovereignty, with its shifting possibilities of rearrangements of federal associations, disunions and reunions, might have been possible in a limited area, with small population, slight internal interests, and no foreign intercourse; but it was impossible even in 1775, and every doubling of population and wealth since has only made the impossibility more patent. And in exactly the reverse order, the maintenance of state rights, comparatively unimportant in 1775, has grown every year more essential to the well-being of the people, whether viewed as states or as a nation. The area of the state of New York is closely similar to that of England, and there seems to be no great reason why New York should not expect to rival England in population and in wealth. At any rate, every advance toward that point is a stronger reason not only why the welfare and happiness of the increasing population of New York should be consulted, but also why the rest of the country, with its increasing stake in the welfare of New York, should consult it by maintaining the state rights of New York.

III.218.30

—In this essential respect, there seems at present to be little fear for the future. It is, of course, not so easy for one who is in the current of events, as for one who looks from the outside, to calculate exactly their force and direction: but so far as can be seen now, the intensity of the national predilection for state rights is increasing, not diminishing. Mr. E. A. Freeman, in his magazine article, cited below, lays stress on the general American substitution of the word "national," since 1860, for the word "federal." "It used to be 'federal capital,' 'federal army,' 'federal revenue,' etc.; now, the word 'national' is almost always used instead. This surely marks a tendency to forget the federal character of the national government, or at least to forget that its federal character is its very essence." The argument would be very strong if the change had taken place in a period of peace, but the change really shows no sign of permanence, and is only one of the last waves of the tremendous exertion of national sovereignty in 1861-5, never, it is to be hoped, to be again made necessary. A stronger argument is drawn from the passage of laws by congress, such as the national banking law, the general election law, and a few other statutes, which conflict with what were long considered state rights. But these are exceptional cases, due to causes entirely outside of state rights. It is far more noteworthy that state rights, even of the conquered states, have come unscathed through the storm of a desolating war directed against a number of the states. It would be difficult to specify any point in which the theory of government by states has been seriously marred since the adoption of the constitution. Wherein do the people of New York or Virginia govern themselves less now than in 1789? The only fear to the contrary is in the encroachments of the federal judiciary; but these would punish and correct themselves by so clogging the federal courts with business as to compel their reformation by the national will. And while the outlines have been maintained, the state's power has grown pari passu with that of the nation: New York is now a stronger and richer state, a more powerful government, a more valuable friend in peace, a more formidable enemy in war, than the whole United States in 1789. Under the silent but potentially omnipotent sovereignty of the nation, New York has always enjoyed a power of self-government which her own sovereignty could not have made more absolute, and might easily have made much more doubtful. Under the shadow of the powerful commonwealths of Massachusetts and Pennsylvania, the little states of Rhode Island and Delaware are living their own peculiar life, under the national agis, with an absolute fearlessness of interference from their neighbors for which many a stronger state elsewhere might well have bartered the Philistine armor of "sovereignty." The very same cause, the steady growth of the states in population, wealth and material interests, which would have made state sovereignty yearly more dangerous and hateful to the nation, makes state rights dearer and more evidently essential.

III.218.31

—And it does not require a very close scrutiny of passing events to see that the same cause which has just been mentioned is actually developing a deeper shade of particularism than even state rights. As the state grows more populous and wealthy, a growing diversity of interests in different parts of the state develops a particularist feeling within the state itself. The germ of the feeling has always existed in some of the states. Western and eastern Massachusetts, New York, Pennsylvania, Virginia and North Carolina have quite regularly taken opposite political directions, and in one of them (Virginia) the fissure, expanding under the force of open war, has resulted in the formation of a new state. But in all the larger states, there are indications of the steady growth of the feeling; and the probability is, that, as soon as population becomes dense, the pressure of conflicting interests will be relieved by the throwing off of new states. Already New York has three fairly defined sections, the west, the north, and the southeast, any one of which is a potential state. The enormous and diversified area of Texas was never made for a single state; and only increasing density of population is needed to make the same thing evident in other cases. The silent growth of the feeling may be estimated from a single instance. In 1794 the so-called "whisky insurrection" (see that title), in western Pennsylvania, was suppressed by militia, a part of the force being drawn from New Jersey, Maryland and Virginia. In 1877 the same region was the scene of a part of the railroad riots, and the attempt was made to employ militia from the eastern part of the state in restoring order. Let him who remembers the delirium of passion with which men of all classes resisted the attempt, ask himself what the result would have been if New Jersey, Maryland or Virginia militia had again been introduced, and say whether the particularist feeling is less strong in that region now than in 1794. It is even evident that the particularist feeling is not confined entirely to sections of states, but that the great cities which have been growing up on our soil are also developing a particularism of their own. The shibboleth of "home rule," the abandonment of state and national parties in local elections, which has of late years developed so strong a following in Philadelphia, Brooklyn and New York city, is only a phrasing of this new and deeper shade of particularism, which will come out to full view as soon and as fast as it is needed. Mr. Freeman, in the article before referred to, notes this very peculiarity: "An American city is more thoroughly a commonwealth, it has more of the feelings of a commonwealth, than an English city has." Such evident tendencies may well offset a temporary exaggeration of the word national. They seem to show that the people of the United States are justified in their abounding confidence that their political machine has the power to correct its own errors and to guard against its own dangers.

III.218.32

—A complete definition of state rights is an impossibility. Theoretically, they consist of all the powers of government which the nation has not transferred to the federal government or forbidden the states to exercise. (See CONSTITUTION.) By leaving the states and their governments in situ at the outbreak of the revolution, the nation confirmed to them a power over their own territory practically unlimited at the time; but the rights and powers which they have since lost have gone to the general government by direct transfer. The rights of the federal government and of a state government must be ascertained by two directly opposite questions: in the case of the former we must ask what rights have been directly transferred to it by the federal constitution; but in the case of the latter, what rights and powers have been forbidden to it by the state or federal constitutions. In the case of doubtful powers the presumption is against the federal government and in favor of the state, for the nation has given the federal government a limited charter, while it has only circumscribed the state government in certain particulars. The onus probandi is upon the asserter of federal authority and the denier of state authority. The state's direct and indirect powers cover all the field of daily life and interests, while multitudes of persons live and die without once coming directly in contact with federal power or practically realizing the existence of the federal government except by participation in biennial elections. But even this does not quite express the sum total of state rights. The states still assert a power to punish for treason, though the power in offenses against the United States has been transferred to congress (see TREASON); and there are certain powers, such as the passage of insolvency laws, and the regulation of congressional elections, which they exercise in default of action by congress. And, in general, they have whatever powers their courts may define as their right, and may succeed, by persistence or ingenuity, in maintaining against the federal courts, always provided that the controversy does not take the aspect of force: in that case the state must yield to the more direct representatives of the national will. Even in this latter case, the chances are still decidedly in favor of the state; for it has, unless it is very evidently in the wrong, the pronounced sympathy of the nation, which works in its favor in innumerable ways. Conflicts of this kind are not uncommon: one is in progress at the present writing (1883) between the federal and state courts in New Jersey. They are always compromised or evaded, and results will show that the state court, by claiming more than its right, regularly obtains all it can fairly ask. (See, in general, CONSTITUTION, Art. I., §§ 4, 8-10; Art. III., §§ 2, 3; Art. IV., §§ 3, 4; Art. V.; Art. VII.; and Amendments, Arts. X.-XV.)

III.218.33

—The theory of state sovereignty is best stated in 1 Tucker's Blackstone, Appendix, note D, and in Story's Commentaries, §§ 310-318. For the arguments in favor of it see, "Centz"'s Republic of Republics; 1 Calhoun's Works; 2 ib., 197, 262; 3 ib., 140; 1 Stephens' War Between the States (see index); Fowler's Sectional Controversy, 351; Harris' Political Conflict in America, 212; Pollard's Lost Cause, 33. For the Madison theory, see Federalist (No. 39); North American Review, October, 1830, 537; 2 Curtis' History of the Constitution, 377. See also 1 Austin's Province of Jurisprudence, 226; 1 von Holst's United States (Lalor's trans.) 1-63; 5 Bancroft's United States, 500; 6 ib., 351; Greene's Historical View of the Revolution, 119; Prince's Confederation vs. Constitution; 2 Rives' Life of Madison, 371; Hurd's Law of Freedom and Bondage, cap. xi.; 3 Webster's Works, 448; 1 Benton's Thirty Years' View, 360: Brownson's American Republic, 195, 239; Mulford's The Nation, 310; Goodwin's Natural History of Secession; H. Adams' Life of Randolph; Poore's Federal and State Constitutions; Journals of Congress (under dates named); 1-3 Elliot's Debates (under dates and states named); Dillon's Notes on Historical Evidence; 2 Whig Review, 455; Freeman's Impressions of America; Harper's Magazine, June, 1880 (G. T. Curtis' article); 1 Bancroft's History of the Constitution, 146; 2 ib., 47, 332; Hurd's Theory of Our National Existence, 104, 526.

A. J.

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