eral convention of the states. This assent and ratification, was to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belonged. And each state, in ratifying the constitution, was considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act." So said Madison; and with him, one and all of the Nationals (the party which had advocated a strong national government in the general convention) were fully agreed.

'The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.' So again says the federal constitution." It is asked by whom were they so reserved? The answer is plain. The body which conferred portions of its powers upon the government which it had created, is alone capable of reserving the residuum to itself, or to any other body.'' That body, as we have seen, was the body of electors, 'the people,' of each state.1

And what, upon the question, is the doctrine of the Supreme Court of the United States? So late as 1842, in a case where the question of state sovereignty was of primary importance and directly before it, that court held, that 'WHEN THE REVOLUTION TOOK PLACE, THE PEOPLE OF EACH STATE BECAME THEMSELVES SOVEREIGN; and, in that character, hold the absolute right to all their navigable waters and the soils under them, for their common use, subject only to the rights since surrendered by the constitution to the general government:' and when the people of New Jersey took possession of the reins of gov

5

1 The Federalist, No. 39, pp. 176-7; No. 40, pp. 181-182.

2 Art. IX and x, Amendments.

3 Pomeroy's Const. Law, & 101.

We are

See the several ordinances of ratification, under 85. wholly at a loss to find the ordinance of ratification by the people of. the United States.'

5 Martin et al. v. Waddell, 16 Peters, 367-410.

135. In

state inalienable.

ernment, and took into their own hands the powers of sovereignty, THE PREROGATIVES AND REGALITIES WHICH BEFORE BELONGED EITHER TO THE CROWN OR THE PARLIAMENT, BECAME IMMEDIATELY AND RIGHTFULLY VESTED IN THE STATE."

It is unnecessary to refer to the earlier decisions of the Supreme Court of the United States, in which the sovereignty of the 'people' has been recognized as identical with the sovereignty of the states as political communities. For, notwithstanding all that was said and written in support and defence of the (not unnatural) tendency of things toward centralization during the late war, the present language of that court is in perfect accord with the federal theory. 'A State,' says that court, 'in the ordinary sense of the [Federal] Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written Constitution, and established by the consent of the governed. It is the union of such States under a common Constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States.' 2 In the same case, that court declares, that 'the preservation of the States and the maintenance of their governments, are as much within the design and care of the [Federal] Constitution, as the preservation of the Union and the maintenance of the national government;' and that 'The Constitution, in all its provisions, looks to AN INDESTRUCTIBLE UNION COMPOSED OF INDESTRUCTIBLE STATES.'

The true theory of state sovereignty, put in a simple ternal sover- form, seems to be this:-The American colonies, by the eignty of a Revolution, became severally free, sovereign and independent states. Now it is a principle of universal law, that a state once sovereign, cannot, by any league, treaty, compact, or other act of its will, substantially transfer, cede or alien, any essential of its self-existence as a sover

1 Martin et al. v. Waddell, 16 Peters, 416. See the cases to this point. cited in note to 142 post.

2 Texas v. White, 7 Wall. 721.

See 134 above.

eign state. Every essential of its self-existence, therefore, each state retains; and consequently each state may do at all times whatever it shall judge to be necessary in order to preserve its existence. But states may doubtless confederate together for their common advantage, and bind themselves to abide the decision of a given majority of their number in matters equally affecting the welfare of all. In which case, as no one among equals is competent to make law for another, no one can insist on its own construction of its duties and rights in relation to the others. No state is so sovereign as to be able to do that.

The argument is drawn from the nature of man. All men by nature are equally free, sovereign and independent. No man can cede, transfer or alien, by any agreement, compact, or other act of his will, any essential of his selfexistence as a morally responsible being; and therefore may at all times, and under all circumstances alike, do whatever he shall judge to be necessary to his self-preservation; to the preservation, we may say, of his own inherent and inalienable right of internal self-government. Now if a man cannot part with this right, neither can a body of men, a political community or state. If, however, a man can oblige himself, by his free consent, and without parting with his right of internal self-government (his essential liberty or freedom), to obey such laws as are founded in common consent, and so become a member of a political society or state; so can bodies of men, political societies or states, without ceding their sovereignty, or in

1'This doctrine,' says Mr. Pomeroy (in his Constitutional Law, note to 55), 'that a sovereign state cannot bind itself by any treaty or compact by which its sovereignty is wholly or substantially surrendered or lessened, is now maintained by the leading writers on Public and International Law.' He cites Martens, Precis du Droit des Gens, & 52 (Paris, 1864); Ortolan, Diplomatie de la Mer, lib. 1, ch. v, p. 90 (Paris, 1864); Hautefeuille, Des Droits et des Devoirs des Nations Neutres, t. I, pp. 810 (Paris, 1858); Heffter, Droit International Public, ¿ 83 (Paris, 1866); Pinheiro-Ferreira, note to 58 of Martens (Ed. of 1864). These are standard authorities; many others might also be added; but the doctrine has never been questioned, I believe, when properly stated, by any respectable authority. No state in the world is sovereign, properly speaking, except in relation to its own internal affairs.

ternal right of self-government, oblige themselves, in like manner, to obey such laws as are made by common consent, and so become members of a larger society or confederacy of states. If such a confederacy amounts to nothing but 'a rope of sand,' the same is true of the union of individuals composing a state. Whether we apply the argument to individuals or to states, the result is the same. If our system is to rest on the natural, inherent, and inalienable rights of man, the veracity of the argument must be conceded in relation to each individual, considered as an equal member of the state. If the states, in our system, are essential to the security of those rights, the soundness of the argument is not to be questioned in relation to each state, considered as a member of the union.

136. The The maintenance of the boundary line between the inonly escape ternal and external sovereignty of states, as well as of infrom the tyr- dividuals, upon which the doctrine of inalienable rights is anny of mafounded, is the only possible escape from the tyranny of jorities. factions and majorities in governments resting on common consent. For, as is self-evident, if every right be subject to the will of the majority, not even the rights of conscience can be secure: our declarations of inherent and inalienable rights, contained in our constitutions, must pass for naught. It must not be overlooked, that our American political system was originally proposed and established upon the basis of the natural and inalienable rights of man; that all was done for the sole and exclusive purpose of securing the enjoyment of those rights to each and to every individual; and that the states were supposed to be quite as necessary a means to this end as the union of the states." It cannot be pretended that the basis was unsound, that the purpose was illegitimate, or that the means were unnecessary. Nature herself takes care, that the separate and distinct organization, the self-existence, of each of the individual members of the state, shall be continued and preserved; that their lives and energies shall not be

1 Ante, ¿¿ 13, 14, 15.

2 Ante, ¿ 121.

moulded into a single consolidated mass of flesh and blood, and their moral and intellectual capacities centered in a single head. It is equally essential that the independent organization, the internal sovereignty and self-existence, of each of the states of the union should be inviolably secured and preserved, in order to prevent our scheme of self-government from proving an absolute failure, and the government of the union from becoming an imperial, despotic, and irresponsible head. This has never been questioned, and will never be denied, by any true friend of the cause of humanity. Nor can it be doubted, that the right of self-preservation, though not an inherent or necessary attribute of any political government, inheres in each separate community of men considered as a state, in the very same sense that it inheres in every man regarded as a natural individual, and cannot be ceded or aliened to another. If, then, each state, as each individual member of society, is to be secured and preserved in its full, essential and necessary integrity,-in all that is essential to its self-support and self-existence,-it unquestionably follows, that each state must have, at all times, and under any and all circumstances, the sovereign right to do whatever it may judge to be absolutely necessary to such, its own security and self-preservation.

The question for the people is therefore reduced to this: -Shall we continue to have a UNION OF STATES, or shall we make it A SINGLE, CENTRAL, IMPERIAL AND DESPOTIC GOVERNMENT?

dissolved?

No doubt the people of this country are determined, and ? 137. May have always been determined, to have, maintain and pre- the union be serve, A UNION OF STATES. The name they have chosen for themselves, THE UNITED STATES of America;' THE FLAG OF OUR UNION, with its ever glorious Stars, emblems of States United are their sovereign, sacred, and patriotic pledges to each other, of this their unwavering and invincible determination.

But, it is said, if our union be only a union of states, it may be rightfully dissolved by the states! This is unques