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if it would serve any good purpose. The point has, however, been made sufficiently plain that, upon this most important topic of public law, an almost chaos of thought reigns. The explanation for this must be that there has not been a proper analysis of the problem as a purely juristic one. We shall therefore be justified if we consider this question with some degree of particularity.

Preliminary Propositions. As an introduction to this examination it will be well to repeat certain of the propositions which have been already established and which will furnish the premises of our argument. These are:

1. That sovereignty signifies the legal competence of the State to determine its own legal rights and obligations as well as those of all persons, natural and artificial, over whom it claims jurisdiction.

2. That sovereignty, thus denoting the legally omnipotent will of the State, is indivisible and inalienable.

3. That two or more States, each possessing this sovereignty or legal omnipotence, cannot enter into relations with one another which are of a strictly legal character. This is a topic which will be more fully discussed in a later chapter, but it is sufficient here to say that inasmuch as a law, in sensu strictiore, imports a command from a legal superior to a legal inferior, it cannot apply to relations between two or more sovereign states which stand towards one another as equals. They can enter into agreements that create moral or political but not legal obligations.

4. From this third proposition it follows, as has been shown in an earlier chapter, that a sovereign State cannot be created through the joint action of two or more previously existing sovereign States. In other words, sovereignty cannot be the product of a treaty.

These principles being established, it is clear that, when dealing with political groups composed of two or

more bodies-politic terming themselves States, 18 but two possible juristic alternatives are presented. Either the central or so-called federal body possesses the sovereignty, in which case the federated units are wholly without sovereignty; or these federated units are severally sovereign, in which case the central body is wholly without this attribute. If, then, we give the name Federation or Federal Union or Federal State (Bundesstaat) to the first of these forms, and to the second the name Confederation or Confederacy (Staatenbund), we find that these two political types stand almost poles apart from one another. They are not different species of the same genus, but are juristically antithetical to each other.

Confederacies. In a Confederation the member States retain their full sovereignty and legal independence and, strictly speaking, no central State is created. There is a common or central government but no central sovereignty. The central government is thus nothing more than the common organ or complexus of organs which the severally sovereign States establish and maintain for the carrying out of purposes with reference to which these States have agreed to act as a unit. This central government may thus be viewed as, in effect, a branch of the government of each of the associated States, and all the authority that it exercises as obtained by delegation from these States. The instrument which defines the powers of the central government and the corresponding obligations of the States may be known as a Constitution, but, accurately speaking, it is nothing more than a treaty or compact between the States, and derives its validity from their consent to it.

This being the juristic nature of a confederacy, any member State may withdraw from it without being

18 Whether or not properly so terming themselves will be later considered.

chargeable with the commission of an illegal act, and this is so even though the articles of confederation may provide for a perpetual union. Such a withdrawal by one or more States may be a violation of international good faith and furnish serious grounds for complaint upon the part of the States remaining within the confederation, but it cannot be properly asserted by them that the secession is an illegal or unconstitutional act.

Distinct from the right of secession is the claim sometimes put forth that, in a confederacy, each member State retains the right to determine whether or not it will permit the enforcement within its limits of those orders of the central government which, in the opinion of such State, are not authorized by the constitution or articles of union. This is known as the doctrine of Nullification. Here again it may be said that, inasmuch as each State is admitted to be legally sovereign, it cannot be held to act illegally if it refuse obedience to orders of which it disapproves. But such a disobedience, unless expressly recognized by the articles of union, is necessarily a breach of those articles; and, furthermore, the assertion of the right is, in itself, an unreasonable one, for, if exercised, the effect is to allow a State to remain in the confederation and obtain all the advantages flowing from it while at the same time refusing to abide by such special commands as happen to be onerous or otherwise objectionable to itself. The claim of a right of nullification is thus, in some ways, a more extreme claim than is the assertion of a right of secession from the Union.1

19

Among the more important examples of confederacies may be mentioned the old German Union which lasted

19

"In 1861, at the time of the secession of the Southern States from the American Union, a number of their leading spokesmen took pains to say that they repudiated the doctrine that the States, while remaining in the Union, might "nullify" for their own citizens such acts of the Union as they might disapprove.

from 1815 to 1866, the Swiss Confederacy under the Pact of 1815 (1815 to 1840), and the Union of the former American Colonies from 1781 to 1789 under the Articles of Confederation.

Federal States. As distinguished from a confederacy, a federal State (Bundesstaat) connotes the existence of a true central sovereign State, composed of constituent States which are not themselves severally sovereign. There are some jurists who deny that these constituent bodies-politic may be properly termed States, but in common speech they are usually spoken of as such, and the question whether or not this is technically correct, from a juristic standpoint, will, for the present, be postponed.

The central government of a federal State, being conceived of as the organ of a true central State, is not to be regarded as the common organ through which the member States of the Union realize certain of their individual ends. Rather, the reverse is the case, for the central State, being admittedly sovereign, and the member States not sovereign, their governments may properly be regarded as organs through which the central State exercises its sovereign will in the several areas of the nonsovereign member States.

The federal State is thus to be viewed as deriving its authority from its own inherent sovereignty and not by way of delegation from the member States. It may, indeed, be the historical fact that the Union was established at the common desire and by the joint cooperation of these States, but, if it be conceded that a national sovereignty exists, it is irrelevant, legally speaking, how this was brought about. The constitutional result is that the member States may no longer be viewed as themselves sovereign and upon a constitutional level with the National State.

Federal States and Confederacies Distinguished. In the Federal State, then, a true central State is created, its several units are legally and constitutionally united, and sovereignty-the power of ultimately determining one's own legal competence-resides in the federal body. In the Confederacy, on the other hand, the individual States retain their character as States, and their relations to each other are of an international or treaty character. Consequently no central State is created, and sovereignty lies. wholly within such individual political units. What union there is in the Confederacy is the creation of the wills of the individual States. In a Federal State, on the other hand, its foundation rests in itself. It is created by the people as a whole, and the individual States are creations of its will. In the case of a Federal State, historically founded upon a union of previously existing sovereign States, one is to consider the citizens of the Federal State as first divesting themselves of their old State Sovereignties, and then, as a People, establishing a national Federal State. These two volitional acts may be synchronous and made apparent by a single outward act, viz., the establishment of a federal control, but they are distinct acts from a political standpoint. The apparent continued existence in the Federal States of what were formerly independent political bodies, is not real. Those bodies-politic are destroyed when their citizens transfer their allegiance to the central power. They are recreated as bodies-politic by the federal constitution. They are thus creations of the Federal State, and, as Lincoln said in his first message to Congress, "The States have their status in the Union and they have no other legal status. The Union is older than any of the States, and in fact created them as States." 20

"Bearing upon this point, as well as upon the comparison which we have before made of our individual Commonwealths with their own

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