ratification of it, as to place beyond all possible controversy the constitutional status that the member States were to have in the Union, and the legal action that they might take in case they should deem that the National State was attempting to exercise powers not constitutionally vested in it.17

By adopting the explanation which has been given of the political doctrines and intentions of those who established the American Union in 1789, we seem to be put in the peculiar position of holding that the statesmen of that time intended to obtain, and thought that they were obtaining, a result which we now know to have been a logical impossibility, and which, in fact, as events soon showed, was one which it was in practice impossible to maintain. If, then, we are asked to decide, from the strictly juristic point of view, what was the character of the Union at the time it was entered into, we can only answer that it is impossible to say. This, however, is not a surprising confession, for, as we have earlier learned, the existence of sovereignty is a fact which, by its very nature, is one that cannot be determined by the historical processes that have brought a political organisation into being. The existence of sovereignty, in other words, is a fact that is made manifest by the legal competence that is effectively asserted by a political organization, and especially, whether this is claimed as originating in itself and not by way of delegation from any other po

17

Some few writers have asserted that the men of the time perceived that they had left this matter undetermined, but that, for reasons of practical expediency, they deliberately left it in that condition. This is the view, for example, of A. H. Small, in his monograph, The Beginnings of American Nationality, published in the Johns Hopkins University Studies in Historical and Political Science (vol. VIII); and of Francis A. Walker in his article "The Growth of American Nationality,” published in 1895. There is no historical evidence to support this opinion, and it seems to the writer almost inconceivable that, if this had been a policy deliberately pursued, there would not have come down to us, in the notes or writings of the men of that time, some record of it.

litical authority. This being so, it may easily happen that, when several governmental organizations are in close association with one another, uncertainty may exist as to which of them is or are sovereign. Indeed, as has already been pointed out in the discussion of the distinction between governments de facto and governments de jure, the political entities that lie back of these governments may or may not be considered as sovereign political persons, according to the point of view of the persons regarding them. So, similarly, with respect to such a federal form of political organization as that exhibited in the United States after 1789, it was possible that a portion of the people should regard the National Government as nothing more than a common agent of the severally sovereign States, and, therefore, that these States might, without legal wrong upon their part, either refuse obedience to federal commands of which they disapproved, or refuse longer to cooperate with the other States of the Union. At the same time, another portion of the people could regard the National Government as the agent of a true National State, possessing sovereignty in its own right, and, in this respect, superior to the member States of the Union. Still a third portion of the people could regard the National State and the individual States, as having the same juristic status, coordinate in authority, and each possessing supreme legal authority within their respective spheres as marked out by the Constitution. This condition of affairs could, and did, exist in the United States until the necessities of practical political life made it imperative that a choice should be made between these views; that is, until political action had to be taken which could be legally justified only by assuming one of these views rather than the others to be the correct one.

The Manifestation of National Sovereignty. The neces

sity for taking action that indicated, if it did not conclusively determine, which of these views was to be the one in accordance with which the constitutional life of the American people was to be conducted, arose very soon. after the establishment of the Union. X The view thus selected and acted upon was that there existed a national authority which was legally superior to that of the individual States. For years, however, lip service continued to be given to the doctrine of a sovereignty divided between the Union and its constituent States, although, whenever an issue arose between the two, the legal supremacy of the former was vindicated.

A liberal construction of national power by the National Congress and by the federal Executive was at once shown by the provision of the Judiciary Act of 1789, which provided for a final determination by the federal Supreme Court of all cases in which state Courts might render decisions adverse to claims by litigants of federal rights, privileges or immunities, 18 and by the establishment, in 1791, of a National Bank.

In 1793 the federal Supreme Court asserted its jurisdiction to give judgment in a suit brought by a citizen of one State of the Union against another State of the Union, despite the claim by the defendant State that such a proceeding was practically a denial of the sovereignty which it claimed to possess.1

19

The next year resistance to a federal tax law upon the part of the people of the State of Pennsylvania was overcome by a display of military force, summoned to the field by the Federal Government.

In 1798-1799 occurred the vehement protest of the States of Virginia and Kentucky against certain acts of

"The crucial importance of this assertion of federal right of determination will presently be discussed.

"Chisholm v. Georgia, 2 Dall. 419.

the federal Congress which they declared unwarranted by the federal Constitution. The resolutions, in which these protests were made, were submitted to the other States for their approval, but the conclusions which they declared, involving as they did a threat of refusal of obedience to the laws in question, were repudiated by the other States.

The year 1803 witnessed the acquisition by the United States of the vast Louisiana Territory and the passage by Congress of the Cumberland Road Act, both of which measures required, in order to sustain their legality, a very liberal interpretation of federal powers as defined by the Constitution.

In 1803 came also the decision of the Federal Supreme Court in the famous case of Marbury v. Madison 20 in which, for the first time, an act of Congress was declared void because not warranted by the federal Constitution. The significance of this case, as regards the matter of the location of sovereignty in the American Union, was that it pointed to the federal court as the proper tribunal for the final and authoritative construction of the provisions of the federal Constitution.

A few years later the State of Pennsylvania attempted to prevent the enforcement of a decree of a federal court, and, in fact, by an act of its legislature denied the authority of the federal court in the premises and directed the executive of the State to prevent, by force of arms if necessary, the execution of the federal decree that had been rendered. A writ having been asked of the federal Supreme Court to compel the lower federal court to proceed with the enforcement of its decree, the Supreme Court, in 1809, declared that the act of the Pennsylvania legislature was a legal nullity; that the State possessed no constitutional right to resist the legal process of a

201 Cr. 137.

federal court; and that a peremptory mandamus should issue.21 In obedience to this order the lower federal court issued a writ of attachment, the service of which was at first sought to be prevented by state troops which had been called out by the Governor of the State. However, a comitatus of two thousand men having been summoned by the federal marshal, and the President of the United States having been appealed to in vain by the State Governor, the Pennsylvania authorities ceased their resistance which they saw would be futile, and the supremacy of the federal authority was thus fully vindicated.

In 1810, in the case of Fletcher v. Peck,22 the federal Supreme Court again asserted and exercised the right to treat as void an act of a State legislature which the Supreme Court deemed unwarranted by the federal Constitution.

In 1819 was decided the case of McCulloch v. Maryland 23 in which it was held that a State of the Union could not, even in the exercise of such an important power as that of taxation, interfere in any way with the efficient operation of any agency of the Federal Government, even though the existence of that agency might not be an essential part of the federal machinery of government, and, indeed might be one which the United States could be conceded the right to maintain only by a very liberal definition of the so-called implied powers provided for in Clause 18 of Section 8 of Article I of the Constitution. 24

"United States v. Peters, 5 Cr. 115.

22 6 Cr. 87.

234 Wh. 316.

24

"Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing specifically enumerated powers and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof."