Martin vs. Hunter as quoted at length in the foot-note to the preceding section, to the effect that "the Constitution

Much more might the legitimacy of the general government be doubted had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league such as was the Confederation, the state sovereignties were certainly competent. But when, in order to form a more perfect union,' it was deemed necessary to change the alliance into an effective government possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influence of this fact on the case), is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit."" Curtis' Constitutional History of the United States, vol. II., pp. 71-74.

VIEWS OF PROFESSOR VON HOLST.

"Sec. 8. The Doctrine of State Sovereignty. The premise of the argument of the so-called state's-right school is that there never has been, either in point of fact or in point of law, one people of the United States. The argument proceeds as follows: The people of each state, without being bound in any way by the action or the non-action of the other states, decided for themselves, through their authorized representatives, whether or not they would accept the draft of the Philadelphia convention. That the constitution is a work of states is, therefore, a fact which cannot be gotten rid of on the plea that the constitution begins with the words: We, the people of the United States.' If these words do not contain an evident falsehood, then must the phrase 'United States' be read here as 'states united;' but so read they say simply that the states, in order to better protect their interests, have entered into a new compact to regulate everything in regard to those matters as to which they wish to form one commonwealth. The political existence of the Union was not changed. The states were sovereign afterwards as well as before, and they alone were sovereign because a partition of sovereignty is impossible from its very meaning. It would be to turn nature upside down if the creator were made subordinate to the creature. There was no common judge standing above the federal powers and the states. If a conflict of authority broke out between them, the decisive judgment was left to the states, that is, to each of them for itself, as to what rights they had reserved for themselves and what powers they had given to the Union. If the federal government, in the opinion of a single state, exceeded its constitutional authority, that state was justified in declaring the particular law, so far as it came in question, to be null and void. John C. Calhoun, of South Carolina, who with great logical acuteness developed into a complete system this so-called doctrine of nulli

of the United States was ordained and established, not by the States in their sovereign capacities, but emphatically, as

fication, declared that nullification was an 'eminently conservative remedy,' and affirmed that it, and it alone, could prevent the dissolution of the Union. The younger school of the southern state's-right men did not stand by him in this. The doctrine of nullification was constantly pushed into the background and often completely rejected, and on the other hand, again and again and more unconditionally the last consequences were deduced from the premises of the state's-school. Since the constitution is a compact between sovereign states, they said, the states have the power to cut loose from the Union if the compact is broken, either by the national government or by the other states,—if it changes from a means of protection and of advancement into a source of destruction and certain ruin. Sovereignty is not only indivisible, but cannot be parted with, and the states, bound only through an act of their own free will, can be bound only as long as their will does not change; that is, as they wish to be bound. Secession is thus not a right under the constitution, that is, a constitutional right, but it is inherent in the nature of the states, and therefore could not possibly be given up by the adoption of the constitution. The attempt to prevent by force the secession of a state is not a suppression of a rebellion, but an international war. Others did not go as far, and thought they had found a middle course. They admitted that secession was a revolutionary act, but affirmed that the federal government was not empowered to use force against the sovereign states. This was the non-coercion theory. They claimed that the sovereign states had the right of neutrality; that is, that although they had not cut loose from the Union, they were justified in standing on one side as spectators during a conflict fought out with the sword between the federal government and the seceded states.

"The result of the civil war made this one of the dead and gone doctrines of history. After its champions had appealed to the ultima ratio and had been completely conquered, it had no more political vitality. And it will never again have it. The victorious north did not even consider it necessary to guard itself against the possibility of the revival of this doctrine by inserting in the constitution a new express declaration against it. The opposite doctrine is thus unquestionably valid constitutional law to-day, whatever one may think on the question as to what originally was constitutional law. There is no need here of any further critical examination of the doctrine of state sovereignty. This is involved in the statement of the opposite doctrine, which is the constitutional law of to-day.

"Sec. 9. The People of the United States of course did not act as one uniform whole when they gave themselves this constitution. The people, that is, the part of the population of each state endowed with full political rights, acted for themselves, and had absolute freedom of decision. They could accept the draft of the Philadelphia convention through their authorized representatives, or they could reject it, and therewith cut loose from the Union, if the projected organization of the

the preamble of the Constitution declares 'by the people of the United States.'" 1

Chancellor Kent, in his Lectures on the Government and Constitutional Jurisprudence, which forms the second part

$28.

STORY, J. See note 3 to preceding section and also see chap. V. § 138, et seq.

1 Martin vs. Hunter, U. S. Sup. Ct. 18, 1816, 1 Wheaton, 304, p. 324, latter were accomplished. But their ratification did not make the draft a constitution. Their ratification was simply a declaration, binding in law, that if the people of at least eight other states came to the same conclusion, the organization of the Union should therewith become an accomplished fact; so that, for the states concerned, this draft should be good as a constitution given by the people of the United States to the United States. Only by and through the choice of its own people did each state become a constituent member of the Union. This, however, did not happen through an act of will of any single state, but the Philadelphia draft first became a constitution by the equal and cooperating consent of the people of nine states, and the states which ratified it afterwards evidently acquired by their ratification exactly the same legal status in the Union. Chief Justice Chase was unquestionably right when he said that 'the Union of the states never was a purely artificial and arbitrary relation.' This fact, however, did not settle the matter at issue. Whether the states were or were not sovereign from the time of the declaration of independence, by common consent every one of them decided as a sovereign upon the adoption of the constitution, that is, upon its own entrance into the Union. On the other hand, whatever their legal status in the confederation and their political nature up to this time might have been, they were not sovereign by common consent, that is, according to the constitution, as members of the new Union. The Philadelphia convention began its labor by the adoption of a resolution which declared that a national government ought to be established, consisting of a supreme legislative, executive and judiciary.' If a state adopted the draft, its people thereby declared that they, as far and as widely as this draft provided, should be fused with the people of the other states into one people of the United States; and by the concurrent decision of all, this declaration, put in this way, was placed at the beginning of the constitution, so that this proclaimed itself as the work of this one people of the United States.

"Sec. 10. The Constitution is not a compact between the states, but it is, as it declares itself to be, a constitution, and in truth, the constitution of the United States, that is, of the Union, of the commonwealth formed out of the states. Therefore, it is unconditionally binding, as well for the whole people as for the states as such. No room for doubt is left, for the second section of the sixth article reads: This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land,

of his Commentaries, says in regard to this element of nationality:

"The Government of the United States was erected by the free voice and joint will of the people of America, for their common defence and general welfare. Its powers apply to those great interests which relate to this country in its national capacity, and which depend for their stability and protection on the consolidation of the Union. It is clothed with the principal attributes of political sovereignty, and it is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of national greatness. The constitution and jurisprudence of the United States deserve the most accurate examination; and an historical view of the rise and progress of the Union, and of the establishment of the present Constitution, as the necessary fruit of it, will tend to show the genius and value of the government, and prepare the mind of the student for an investigation of its powers.

"The association of the American people into one body politic, took place while they were colonies of the British empire, and owed allegiance to the British crown. That the union of this country was essential to its safety, its prosperity, and its greatness had been generally known, and frequently avowed long before the late revolution, or the claims of the British Parliament which produced it.""

2 Kent's Comm. (14th ed.), Lecture X., p. 202.

and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.' The constitution is thus the law, and, moreover, the supreme law of the land. The constitutions of the separate states are their fundamental laws only in regard to those matters which are not submitted by the federal constitution to federal authority. This provision makes the constitution an integral part of the constitution of each state. If there is a conflict between them, then the provision of the state constitution opposed to the federal constitution is ipso facto null and void. All judges, and therefore, evidently, all other state officers, and all citizens of the state, are absolutely bound down to this fundamental principle. He who seeks to overthrow it lays hands on the fundamental law of the land. The federal government, which is bound to give the constitution life and being by law, is therefore not only empowered but directed to break down any opposition; -if possible, by the ordinary and peaceful powers of the state as provided by the constitution, but in case of need, by

$29. Samuel F. Miller's views. One of the strongest expositions of the completeness of the sovereignty of the United States is found in Justice Samuel F. Miller's "Lectures on the Constitution," which have been annotated and published since his death by Mr. J. C. Bancroft Davis. This volume is recognized as a text-book of high authority on the interpretation of the Constitution; and justly so, as the author was often called upon judicially to construe it while he was a member of the Supreme Court, and the annotator has had the greatest opportunity of studying that instrument, and the interpretation thereof by the Supreme Court, during his term as its reporter, which has extended over a period represented by more than seventy volumes of the reports, and during which time he has prepared the headnotes of nearly every important decision on constitutional questions. In the notes to Lecture I. it is stated that, after the fall of British sovereignty, the broad functions of general government were assumed by the Continental Congress and exercised without question, even before the adoption of the Federal Constitution or the Articles of Confederation; that this state of facts existed while the Constitution was being framed, and continued after its adoption. As to these great natural powers of sovereignty, the notes say: "They were never enjoyed or exercised by the States separately, and, consequently, as an historic fact, independently of theory, could not have been retained when the States conferred upon the General Government the other enumerated powers." In speaking of the acceptance of the Northwest Territory, the declaration is made that the "sovereignty over it was vested in the United States as one undivided and independent nation. The simple truth is, the United States existed as a sovereign power from the necessities of the emergency."

In 1867 Mr. Justice Miller pronounced the opinion of the Court in a case in which it was decided that no State had the right to tax railroad and stage companies for passengers carried out of the State, or for the privilege of passing through

$ 29.

1 Miller's Lectures on the Constitution, pp. 38-58.

force." The Constitutional Law of the United States by Dr. H. Von Holst, §§ 8-10, pp. 39-44,