interpretations of disputes which, in other States, are disposed of upon a basis of equity, compromise and political expediency. It is certain, therefore, that, irrespective of any other considerations, the federal system is not suited to a people who are not habituated to the rule of law, trained in an appreciation of legal distinctions, and disposed to acquiesce in judicial determinations even with reference to matters of the greatest political importance.

Advantages of the Federal Form. The special advantage of the federal form consists in the fact that it permits the satisfaction in fuller form than is possible under any ordinary system of local government of the desire that may be felt by the citizens of the individual States to preserve their rights of self-government while at the same time yielding obedience, as to certain matters, to a common political authority.

It is, however, to be observed, that, legitimate though this desire may be, it is one which is founded upon sentimental grounds rather than upon considerations of governmental efficiency. And this is shown by the significant fact that the federal system has seldom been adopted save as a means of securing cooperation between bodies-politic which were previously independent of one another, and around which have grown feelings of loyalty and affection which have made their citizens unwilling to purchase national unity and strength if that was to mean a total destruction of their several States as distinct political entities. This has been the case with the United States, Germany, Switzerland, Canada and Australia. With reference to all of these, the federal form was thus adopted, not willingly as the best possible form of political rule, but more or less unwillingly as a means of securing the amount of national strength and unity that circumstances made indispensable, while preserving, as far as possible,

the independence of the several States to which their citizens had become historically attached. Thus it has been said of the American Union that it was "wrung from the grinding necessities of a reluctant people"; and, as we know, the feeling that their primary and truest allegiance belonged to their individual States rather than to the National Government persisted in the minds of many long after the national constitution was adopted, and seventy years later was strong enough to lead the citizens of eleven of the States to secede from the Union and attempt, at an enormous sacrifice of human lives and property, to maintain their independence.

CHAPTER XIV

THE UNITED STATES OF AMERICA

ASIDE from the intrinsic importance of the inquiry, an examination of the juristic nature of the American Federal Union is of value to the analytical jurist because of the excellent opportunity it offers him to apply and test the value of the abstract doctrines he has deductively obtained.1

The States' Rights Theory. In the controversies which have been waged as to the nature of the American Union, the so-called States Rights school advanced a single and logical theory. According to this theory the Constitution was declared to have been a compact to which the original States, acting as severally sovereign political bodies, were the contracting parties, and that it was not intended by these States, by the agreement into which they entered, to create a political entity that would be legally superior to themselves, and, therefore, in derogation of their own several sovereignties. Starting from this premise, this school deduced from it the essentially confederate nature of the Union and the denial that secession from it by any State at any time would be an illegal act.2

'In this chapter the author has drawn liberally upon chapter II of his volume, The American Constitutional System, published in 1904. This last conclusion was generally stated as an assertion that the States had a legal "right" to secede. This was not an exactly correct way of stating the proposition, for, the Union not being, ex hypothesi, a legal one, there could be no legal right in relation to it. All that could properly be said was that secession would not be a legal wrong. As to the States subsequently admitted to the Union, it was argued that they obtained the same status as that of the original framers of the Constitution: that instrument, it was argued, implies in all its pro

This juristic interpretation of the nature of the union entered into in 1789 was explicitly put forth as early as 1798 in the "Resolutions" of the legislature of the State of Kentucky which asserted: "That the several States comprising the United States of America are not united on the principles of unlimited submission to their General Government for special purposes. That to this compact each State acceded as a State and as an integral party, its co-States forming, as to itself, the other party.” In the Resolutions adopted by the Virginia legislature the same year it was declared: "That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the States are parties."

This doctrine was still more explicitly stated in 1803 by the first commentator upon the new Constitution, St. George Tucker. He said: "The Constitution of the United States is an original, written, federal and social compact, freely, voluntarily and solemnly entered in by the several States and ratified by the people thereof respectively. It is a federal compact; several sovereign and independent States may unite themselves together by a perpetual confederacy, without each ceasing to be a perfect State. The Union is, in fact, as well as in theory, an association of States, or a Confederacy."

In another place he said: "The Federal Government, then, appears to be the organ through which the United Republics communicate with foreign nations, and with each other. Their submission to its operation is voluntary; its councils, its engagements, its authority, are theirs, modified and united. Its sovereignty is an emanation from theirs, not a flame in which they have been

visions an equality of rights upon the part of the States. This constitutional principle has, in fact, been declared by the Supreme Court of the United States.

In an appendix to his edition of Blackstone's Commentaries.

consumed, nor a vortex in which they are swallowed up. Each is still a perfect State, still sovereign, still independent, and still capable, should the occasion require, of assuming the exercise of its functions, as such, to the most unlimited extent."

Calhoun. States' Rights assertions of a similar tenor continued from time to time to be made but the theory did not receive its final elaboration until John C. Calhoun took up the argument in behalf of the State of South Carolina in the controversy which had arisen between that State and the Federal Government with reference to a protective federal tariff.1

Nationalistic Theories. Those who have asserted the legal supremacy of the United States as a single sovereign State have advanced a number of theories, not always concordant with one another, and have put forward varying interpretations of the circumstances attending the historical birth of the Union. The chief of these theories and statements of alleged fact will be discussed.

The Constituent States Sovereign in 1789. By some it was declared that the original thirteen States never were severally sovereign bodies-politic, and that therefore the General Government, created in 1789, could not have been the product of their compacting sovereign wills. This statement of fact, it is now generally agreed, cannot be substantiated. There has, of course, been no difficulty on the part of those who have asserted the theory in showing that the independence of the original States from the dominion of Great Britain was, and could have been, obtained only by cooperative and associated action, but there is practically no evidence to show that a single sovereignty was created or intended to be created. The

'Calhoun's constitutional doctrines in their final form are to be found in his Disquisition on Government and his Discourse on the Constitution and Government of the United States, both of which are to be found in vol. I of his Collected works, published in 1853.