1

central government," was a prime object with the men of 1787, and has greatly contributed to the solidity of the fabric they reared. The de facto secession of eleven States in 1860-61 interfered with the regular legal conduct neither of the presidential election of 1864 nor of the congressional elections from 1861 to 1865. Those States were not represented in Congress; but Congress itself went on diminished in numbers yet with its full legal powers, as the British Parliament would go on though all the peers and representatives from Scotland. might be absent.

IX. A State is, within its proper sphere, just as legally supreme, just as well entitled to give effect to its own will, as is the National government within its sphere; and for the same reason. All authority flows from the

people. The people have given part of their supreme authority to the Central, part to the State governments. Both hold by the same title, and therefore the National government, although superior wherever there is a concurrence of powers, has no more right to trespass upon the domain of a State than a State has upon the domain of Federal action. "When a particular power," says Judge Cooley, "is found to belong to the States, they are entitled to the same complete independence in its exercise as is the National government in wielding its own authority." That the course which a State is following is pernicious, that its motives are bad and its sentiments disloyal to the Union, makes no difference until or unless it infringes on the sphere of Federal authority. It may be thought that however distinctly this may have been laid down as a matter of theory, in practice the State will not obtain the same justice as the National government, because the court which decides

1 Venable, ut supra.

points of law in dispute between the two is in the last resort a Federal court, and therefore biassed in favour of the Federal government. In practice, however, little or no unfairness has arisen from this cause.1 The Supreme court may, as happened for twenty years before the War of Secession, be chiefly composed of States' Rights In any case the court cannot stray far from the path which previous decisions have marked out.

men.

X. There are several remarkable omissions in the constitution of the American federation.

One is that there is no grant of power to the National government to coerce a recalcitrant or rebellious. State. Another is that nothing is said as to the right of secession. Any one can understand why this right should not have been granted. But neither is it mentioned to be negatived.

There is no abstract or theoretic declaration regarding the nature of the federation and its government, nothing as to the ultimate supremacy of the central authority outside the particular sphere allotted to it, nothing as to the so-called sovereign rights of the States. As if with a prescience of the dangers to follow, the wise men of 1787 resolved to give no opening for abstract inquiry and metaphysical dialectic. But in vain. The human mind is not to be so restrained. If the New Testament had consisted of no other writings than the Gospel of St. Matthew and the Epistle of St. James, there would have been scarcely the less a crop of specu

1 "Whatever fluctuations may be seen in the history of public opinion during the period of our national existence, we think it will be found that the Supreme court, so far as its functions required, has always held with a steady and even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution."-Judgment of the Supreme court in The Slaughter House Cases, 16 Wall. 82.

lative theology. The drily legal and practical character of the Constitution did not prevent the growth of a mass of subtle and, so to speak, scholastic metaphysics regarding the nature of the government it created. The inextricable knots which American lawyers and publicists went on tying, down till 1861, were cut by the sword of the North in the Civil War, and need concern us no longer. It is now admitted that the Union is not a mere compact between commonwealths, dissoluble at pleasure, but an instrument of perpetual efficacy,1

1 This view received judicial sanction in the famous case of Texas v. White (7 Wall. 700) decided by the Supreme court after the war. It is there said by Chief-Justice Chase, "The Union of the States never was a purely artificial and arbitrary relation. . . . It received definite form and character and sanction by the Articles of Confederation. By these the Union was solemnly declared to be 'perpetual.' And where these articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual union, made more perfect, is not? But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government, by the States. . . . It may be not unreasonably said that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. When, therefore, Texas became one of the United States she entered into an indissoluble relation. . . . There was no place for reconsideration or revocation except through revolution or through consent of the States. Considered therefore as transactions under the Constitution, the ordinance of secession adopted by the Convention, and ratified by a majority of the citizens of Texas, was absolutely null and utterly without operation in law. The obligations of the State as a member of the Union, and of every citizen of the State as a citizen of the United States, remained perfect and unimpaired." The State did not cease to be a State, nor her citizens to be citizens of the Union. See also the cases of White v. Hart (13 Wall. 646) and Keith v. Clark (97 U. S. 451).

As respects the argument that the Union established by the Constitution of 1789 must be perpetual, because it is declared to have been designed to make a previous perpetual Union more perfect, it may be remarked, as matter of history, that this previous Union (that resting on the Articles of Confederation) had not proved perpetual, but was in fact put an end to by the acceptance in 1788 of the new Constitution by the nine States who first

emanating from the whole people, and alterable by them only in the manner which its own terms prescribe. It is "an indestructible Union of indestructible States."

It follows from the recognition of the indestructibility of the Union that there must somewhere exist a force capable of preserving it. The National government is now admitted to be such a force. "It can exercise all powers essential to preserve and protect its own existence and that of the States, and the constitutional relation of the States to itself, and to one another.”1

May it not," some one will ask, "abuse these powers, abuse them so as to extinguish the States themselves, and turn the federation into a unified government. What is there but the Federal judiciary to prevent this catastrophe ? and the Federal judiciary has only moral and not also physical force at its command."

No doubt it may, but not until public opinion supports it in so doing, that is to say, not until the mass of the nation which now maintains, because it values, the Federal system, is possessed by a desire to overthrow that system. Such a desire may express

ratified that instrument. After that ratification the Confederation was dead, and the States of North Carolina and Rhode Island, which for some months refused to come into the new Union, were clearly out of the old one, and stood alone in the world. May it not then be said that those who destroyed a Union purporting to be perpetual were thereafter estopped from holding it to have been perpetual, and from founding on the word 'perpetual' an argument against those who tried to upset the new Union in 1861, as the old one had been upset in 1788. The answer to this way of putting the point seems to be to admit that the proceedings of 1788 were in fact revolutionary. In ratifying their new Constitution in that year, the nine States broke through and flung away their previous compact which purported to have been made for ever. But they did so for the sake of forming a better and more enduring compact, and their extra-legal action was amply justified by the necessities of the case.

An elaborate discussion of the legal relation of the States to the Union will be found in the learned treatise of Mr. Hurd, The Theory of our National Existence: Boston, 1881.

1 Venable, ut supra.

itself in proper legal form by carrying amendments to the Constitution which will entirely change the nature of the government. Or if the minority be numerous enough to prevent the passing of such amendments, and if the desire of the majority be sufficiently vehement, the majority which sways the National government may disregard legal sanctions and effect its object by a revolution. In either event-and both are improbablethe change which will have passed upon the sentiments of the American people will be a sign that Federalism has done its work, and that the time has arrived for new forms of political life.