THI

STATE SOVEREIGNTY BEFORE 1789.

HIRTY years or more ago no position concerning the constitutional relations of the States to the United States was perhaps more fully established or more frequently affirmed, both North and South, than that of the original political sovereignty of the States which in 1789 formed the Union. It was not merely a dogma but a postulate of our constitutional law. Along with this went the doctrine of the Federalists of our early political history, and of the Unionists of all our political history, that this original sovereignty of the States was limited or abridged by the force and meaning of the Federal Constitution,-limited and abridged to such an extent as to create a new nation, having sovereignty indeed, but a sovereignty in turn strictly limited by the express and implied grants of power in the Federal Constitution. Two sovereignties were thus held to co-exist under our Federal system-a national sovereignty, originally created and limited by the Federal Constitution, and a State sovereignty, originally possessed by each State, but by the adoption of the Federal Constitution in 1789 limited or abridged to the exact extent, and no more, of the powers granted to the United States by the Federal Constitution. The original sovereignty of the States was a concession alike of Calhoun and of Webster; of Jefferson and Madison, as well as of Hamilton. Jefferson, when toying in 1798 with the demon of nullification in the Virginia and Kentucky Resolutions, and Calhoun and his school in their dogmas of secession and constitutional separation, laid the foundation of their arguments on the doctrine of the complete sovereignty of the States prior to 1789; reaching the conclusion that as once possessors of such original sovereignty, the States had still the right under the constitution to withdraw from the Union or to resume the sovereignty and powers conveyed away by the adoption of the constitution. Hamilton, Marshall, Webster, and the school of which they were the most illustrious representatives, conceded and asserted

the original sovereignty of the States; but held that the adoption of the constitution created a nation and not a league, a perpetual government and union, not a temporary or dissoluble compact or confederacy; and that, hence, the original sovereignty of the States was by the adoption of the constitution forever thereafter shorn of its completeness, but to the extent only of the powers granted by the constitution to the United States.

1

Mr. Calhoun's views on this point are found on all hands in his speeches and writings. In his "Discourse on the Constitution and Government of the United States," he says: "That the States when they formed and ratified the constitution were distinct, independent, and sovereign communities has already been established. That the people of the several States acting in their separate, independent, and sovereign character adopted their separate State governments is a fact uncontested and incontestable." In the resolutions introduced by him in the Senate, which led to the great debate of February, 1833, he thus stated his position: "Resolved, That the people of the several States composing these United States are united as parties to a constitutional compact, to which the people of each State acceded as a separate and sovereign community." Again, in his speech in the Senate in reply to Mr. Webster, February 26, 1833, he said: "All acknowledge that previous to the adoption of the constitution the States constituted distinct and independent communities in full possession of their sovereignty.""

No better statement of the Union view can perhaps be found than this passage in Mr. Webster's letter of opinion, addressed to Baring Brothers in 1839: "Every State," he says, "is an independent sovereign political community, except in so far as certain powers, which it might otherwise have exercised, have been conferred on a general government, established under a written constitution, and exercising its authority over the people of all the States. This general government is a limited government.

Its

3 Id., vol. ii. p. 281, 282.

powers are specific and enumerated. All powers not conferred on it still remain with the States or with the people. The State legislatures, on the other hand, possess all usual and ordinary powers of government, subject to any limitations which may be imposed by their own constitutions, and with the exception, as I have said, of the operation on those powers of the constitution of the United States."'

It is the general judgment, we think, of the most competent that some grave excesses of rightful constitutional power marked the great struggle of our Civil War. It is not strange, but only regrettable, that it should have been so. Great interests, the greatest, were at stake; deep passions, the deepest, were aroused; the flames of civil war, fiercer than of foreign, enveloped us all. "The Union must be saved; let it be saved at whatever cost;"-such, one may say, was the national thought. From such a spirit constitutional circumspection was not always to be expected. Some of the excesses in question were temporary in their direct effects; such as the declaration of martial law or the attempt to override the civil authorities, in States not in rebellion; and the suspension of the writ of habeas corpus by President Lincoln in 1863. Other excesses were more lasting in their results, the Legal Tender Acts of 1862 and 1863, for example, which have since steadily poisoned our financial life, and are destined to cast their baleful effects far forward into the future. Not one of these excesses can be fairly said to have been necessary to save the Union or to put down the rebellion. They were the result of alarmed and excited feelings, not unnatural, but not for that reason the less deplorable in their effects. The war ended, and the Union restored, we might well have hoped for soberer views of public duty as well as of constitutional law. In one respect, and that a most important one, our government and Federal system suffered no detriment from or after the war-the substantial relations of the States to the Union. For this great result we are indebted, above all other men, to the late Chief Justice Chase and the late Mr. Justice

1 Works, vol. vi. p. 537.

Miller; to the former for two opinions in the 7th volume of Wallace's reports,' and to the latter for the opinion in the Slaughter House Cases. By these great decisions the balance of our Federal system was preserved against the insidious attacks and specious vagaries of thorough-going doctrinaires and ardent politicians of the era of reconstruction. The nation has yet to know and feel the full measure of our obligations to those great jurists.

Nothing has, however, yet sufficed to lay the spirit aroused by our great struggle, of pushing theories, intended, honestly enough no doubt, to extirpate the seeds of disunion and secession from our constitutional system. Among the notable heresies which have thus sprung up is the doctrine or claim that the States which formed the original Union were never sovereign political communities or governments. This position has been most fully elaborated by the late Professor John Norton Pomeroy in his work on "Constitutional Law." It crops out, too, from time to time, in the less formal or less considered writings of other authors; as in Mr. Fiske's" Civil Government in the United States," and in the article of Professor Tyler in the February number of this Review.

3

Professor Pomeroy-whose view on this point occupies over twenty pages of his work-after saying that "three theories in relation to the essential character of the constitution itself, and of the United States as a body-politic have been proposed and advocated by different schools of statesmen and jurists," states the first theory as holding that the nation existed prior to the adoption of the constitution, and was not called into being by that instrument; that the constitution was not the work of the States nor of the people of the States, but of the people of the United States, as a political unit; that the powers of the United States were not delegated to it by the several States, nor by the people of the several States,

1 Lane Co. v. Oregon, 7 Wall., p. 71. Texas v. White, Idem., 700.

2 16 Wall., 36.

3 P. xxviii and pp. 204, 205.

Article "A New Study of Patrick Henry," p. 345.

but by the people of the United States; that, as a consequence, the powers not granted were not reserved by or to the States, but were reserved by the people of the United States to themselves or to the several States. This theory -which he mistakenly calls the view, in substance, of Hamilton, Jay, Marshall, Story, and Webster-he adopts, and elaborately sets forth and defends. He declares that this theory rests on "plain, historical facts." Prior to the Revolution, he says, each colony was simply a part of the British empire; by their united action as colonies in resistance to Great Britain, they became a nation, and, prior to the Declaration of Independence, all their united acts were national acts; by the Declaration of Independence, they did not declare the separate independence of each State, but the independence of the American nation. This conclusion he regards as supported by the language of the Declaration itself. The sovereignty thus asserted was the sovereignty, not of the individual States, but of the nation or political unit then called the United Colonies. "There never was," he remarks, in fact, a moment's interval when the several States were each independent and sovereign. While colonies they unitedly resisted, revolted, and declared that combined political society independent. The blow which severed the connection with the British empire did not leave a disintegrated mass made up of thirteen communities now independent; it left an united mass, a political unity, a nation possessing the high attributes of sovereignty which it had just exercised. The United States was then a fact, and no power but that which called it into being the People-is competent to secure the national destruction."

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Professor Pomeroy regards this view as vital, "the key to the whole position." "Grant," he says, "that in the beginning the several States were, in any true sense, independent sovereignties, and I see no escape from the extreme positions reached by Mr. Calhoun."

It may be at once admitted that the question here raised is chiefly an historical question of fact. The colonies were undoubtedly prior to 1776 parts of the British empire. As such they could have no separate sovereignty or political