which can be made harmless to the whole body politic only by being allowed free course. It has been due primarily to the historical fact that they existed as commonwealths before the Union came into being; secondarily, to the belief that localized government is the best guarantee for civic freedom, and to a sense of the difficulty of administering a vast territory and population from one centre and by one government.

I return to indicate the points in which the legal independence and right of self-government of the several States appears. Each of the thirty-eight has its ownConstitution (whereof more anon).

Executive, consisting of a governor, and various other officials.

Legislature of two Houses.

System of local government in counties, cities, townships, and school districts.

System of State and local taxation.

Debts, which it may (and sometimes does) repudiate at its own pleasure.

Body of private law, including the whole law of real

and personal property, of contracts, of torts, and of family relations.

Courts, from which no appeal lies (except in cases touching Federal legislation or the Federal constitution) to any Federal court.

System of procedure, civil and criminal.

Citizenship, which may admit persons (e.g. recent immigrants) to be citizens at times, or on conditions, wholly different from those prescribed by other States.

Three points deserve to be noted as illustrating what these attributes include.

I. A man gains active citizenship of the United

States (i.e. a share in the government of the Union) only by becoming a citizen of some particular State. Being such citizen, he is forthwith entitled to the national franchise. That is to say, voting power in the State carries voting power in Federal elections, and however lax a State may be in its grant of such power, e.g. to foreigners just landed or to persons convicted of crime, these State voters will have the right of voting in congressional and presidential elections.1 The only

restriction on the States in this matter is that of the fourteenth and fifteenth Constitutional amendments, which have already been discussed. They were intended to secure equal treatment to the negroes, and incidentally they declare the protection given to all citizens of the United States. Whether they really enlarge it, that is to say, whether it did not exist by implication before, is a legal question, which I need not discuss.

2

1 Congress has power to pass a uniform rule of naturalization (Const. Art. i. § 8).

Under the present naturalization laws a foreigner must have resided in the United States for five years, and for one year in the State or Territory where he seeks admission to United States citizenship, and must declare two years before he is admitted that he renounces allegiance to any foreign prince or state. Naturalization makes him a citizen not only of the United States, but of the State or Territory where he is admitted, but does not necessarily confer the electoral franchise, for that depends on State laws.

In more than a third of the States the electoral franchise is now enjoyed by persons not naturalized as United States citizens.

2 "The line of distinction between the privileges and immunities of citizens of the United States, and those of citizens of the several States, must be traced along the boundary of their respective spheres of action, and the two classes must be as different in their nature as are the functions of their respective governments. A citizen of the United States as such has a right to participate in foreign and inter-state commerce, to have the benefit of the postal laws, to make use in common with others of the navigable waters of the United States, and to pass from State to State, and into foreign countries, because over all these subjects the jurisdiction of the United States extends, and they are covered by its laws. The privileges suggest the immunities. Wherever it is the duty of the United States to give protection to a citizen against any harm, inconvenience, or deprivation, the citizen is entitled to an

II. The power of a State over all communities within its limits is absolute. It may grant or refuse local government as it pleases. The population of the city of Providence is more than one-third of that of the State of Rhode Island, the population of New York city more than one-fifth that of the State of New York. But the State might in either case extinguish the municipality, and govern the city by a single State commissioner appointed for the purpose, or leave it without any government whatever. The city would have no right of complaint to the Federal President or Congress against such a measure. Massachusetts has lately remodelled the city government of Boston just as the British Parliament might remodel that of Birmingham. Let an Englishman imagine a county council for Warwickshire suppressing the municipality of Birmingham, or a Frenchman imagine the department of the Rhone extinguishing the municipality of Lyons, with no possibility of intervention by the central authority, and he will measure the difference between the American States and the local governments of Western Europe.

...

immunity which pertains to Federal citizenship. One very plain immunity is exemption from any tax, burden, or imposition under State laws as a condition to the enjoyment of any right or privilege under the laws of the United States. .. Whatever one may claim as of right under the Constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizen of the United States. Whatever the Constitution and laws of the United States entitle him to exemption from, he may claim an exemption in respect to. And such a right or privilege is abridged whenever the State law interferes with any legitimate operation of Federal authority which concerns his interest, whether it be an authority actively exerted, or resting only in the express or implied command or assurance of the Federal Constitution or law. But the United States can neither grant nor secure to its citizens rights or privileges which are not expressly or by reasonable implication placed under its jurisdiction, and all not so placed are left to the exclusive protection of the States."-Cooley, Principles, pp. 245-247.

III. A State commands the allegiance of its citizens, and may punish them for treason against it. The power has rarely been exercised, but its undoubted legal existence had much to do with inducing the citizens of the Southern States to follow their governments into secession in 1861. They conceived themselves to owe allegiance to the State as well as to the Union, and when it became impossible to preserve both, because the State had declared its secession from the Union, they might hold the earlier and nearer authority to be paramount. Allegiance to the State must now, since the war, be taken to be subordinate to allegiance to the Union. But allegiance to the State still exists; treason against the State is still possible. One cannot think of treason against Warwickshire or the department of the Rhone.

These are illustrations of the doctrine which Europeans often fail to grasp, that the American States were originally in a certain sense, and still for certain purposes remain, sovereign States. Each of the original thirteen became sovereign when it revolted from the mother country in 1776. By entering the Confederation of 1781-88 it parted with one or two of the attributes of sovereignty, by accepting the Federal Constitution in 1788 it subjected itself for certain specified purposes to a central government, but claimed to retain its sovereignty for all other purposes. That is to say, the authority of a State is an inherent, not a delegated, authority. It has all the powers which any independent government can have, except such as it can be affirmatively shown to have stripped itself of, while the Federal Government has only such powers as it can be affirmatively shown to have received. To use the legal expression, the presumption is always for a State, and the burden

of proof lies upon any one who denies its authority in a particular matter.1

What State sovereignty means and includes is a question which incessantly engaged the most active. legal and political minds of the nation, from 1789 down to 1870. Some thought it paramount to the rights of the Union. Some considered it as held in suspense by the Constitution, but capable of reviving as soon as a State should desire to separate from the Union. Some maintained that each State had in accepting the Constitution finally renounced its sovereignty, which thereafter existed only in the sense of such an undefined domestic legislative and administrative authority as had not been conferred upon Congress. The conflict of these views, which became acute in 1830 when South Carolina claimed the right of nullification, produced Secession and the war of 1861-65. Since the defeat of the Secessionists, the last of these views may be deemed to have been established, and the term "State sovereignty" is now but seldom heard. Even "States rights" have a different meaning from that which they had thirty years ago.2

1 It may of course be said that as the colonies associated themselves into a league, at the very time at which they revolted from the British Crown, and as their foreign relations were always managed by the authority and organs of this league, no one of them ever was for international purposes a free and independent sovereign State. This is true, and Abraham Lincoln was in this sense justified in saying that the Union was older than the States. But what are we to say of North Carolina and Rhode Island, after the acceptance of the Constitution of 1787-89 by the other eleven States? They were out of the old Confederation, for it had expired. They were not in the new Union, for they refused during many months to enter it. What else can they have been during those months except sovereign commonwealths?

2 States Rights was a watchword in the South for many years. In 1851 there was a student at Harvard College from South Carolina who bore the name of States Rights Gist, baptized, so to speak, into Calhounism. He rose to be a brigadier-general in the Confederate army, and fell in the Civil War.