Chapter IX: Sovereignty in a Federation

One peculiar case remains to be mentioned in which theoretical views of the nature of Sovereignty, and a certain tendency to confuse the spheres of _de iure_ and _de facto_, produce difficulties. It is the case of communities uniting themselves in a Federation, and resigning to it a part of their self-government, and either a part or the whole of their Sovereignty. There have been several such instances, but it will be sufficient to examine one.

When the thirteen semi-independent States—semi-independent because they had parted with some of their powers by the instrument of confederation of 1776—that lay along the Atlantic coast of North America adopted (between 1787 and 1791) the newly drafted Constitution of the Union, they neither expressly reserved nor expressly disclaimed the right to withdraw from it and resume their previous condition. Questions presently arose as to the right of a State to treat as null any act of the Federal legislature which she deemed to go beyond the powers conferred upon it by the Constitution, and ultimately as to her right to withdraw altogether from the Union. In the discussions of these points much stress was laid on the sovereignty which the several States had (so it was urged) originally possessed, which they had never in terms renounced, and which the Eleventh Amendment to the Federal Constitution had, when it declared that no State could be sued by a private person, virtually admitted.

The earlier statesmen, such as Hamilton and Madison, held that Sovereignty was by the Constitution divided between the Nation, acting through Congress and the President, and the States. This was all the more natural, because both the National and the State organs of government were agents of the people, from whom it was admitted that all powers had come, and in whom, therefore, ultimate Sovereignty must lie, though whether in the people as one whole, or in the several peoples of the several States, was another question. But the publicists of the next generation, who on each side led the contest over slavery, refused to acquiesce in any doctrine of division. Like Bodin, Hobbes, Bentham, and other Europeans, they proclaimed Sovereignty indivisible; but while the Northern men found it in the Nation as a whole, the Southerners, led by Calhoun, insisted that it remained in the several States, suspended or temporarily qualified, but capable of resuming its former proportions in each State whenever that State should quit the Union.

On these questions, which were treated as questions of pure law, there was immense debate—acute, learned, passionate, and such debate might have gone on for ever; for each side had a perfectly arguable case, the point being one which the Constitution had (perhaps intentionally) evaded. The term Sovereignty acquired to the disputants a sort of mystic meaning, and many forgot that while the respective rights of the nation and the States were _de iure_ the same in 1860 as they had been in 1791, a new state of things had in fact grown up, which the old _de iure_ conception did not suit. Controversy there would in any case have been, but the controversy was greatly darkened by the metaphysical character which the use of the abstract term Sovereignty imparted to it; and which helped to conceal the momentous change which the political conditions of the country had undergone.

The moral of a concrete case like this is the same as that suggested by a study of the errors of the modern followers of Hobbes. Hobbes seems to assume that his Sovereign _de iure_ will be also Sovereign _de facto_. Austin cannot admit any one to be a Sovereign who is not so both _de iure_ and _de facto_. The lawyers on both sides in America grew so hot over their legal controversy as to forget the incompetence of law to deal with certain classes of questions. They ignored history, and got too far away from facts. In the sphere of pure law political facts need not be regarded, for Law assumes that while it remains law its decisions will be accepted. But when it is attempted to transfer the principles and conclusions of law to the sphere of controversies in which not only vast interests, but also violent passions are engaged, there is danger that the law may turn out not to have been made for the new facts and not to be capable of dealing with them, so that efforts to apply it to them will not carry the full moral weight which law ought to exert. That each party should have a plausible legal case makes the risk of conflict greater, because men think themselves justified in resorting to force to defend their legal case, whereas if they left law out of the matter, they might be more willing to consider their chances of practical success, and therefore more ready to accept a compromise. What is deemed a good case _de iure_ has sometimes proved a temptation to a weak State to resist when it had better have agreed with its adversary, or a temptation to a strong State to abuse its strength, whether by resorting to force when it ought to have accepted arbitration, or by expending on the annihilation of its opponent an amount of blood and wealth out of all proportion to the issues involved.

Knots which the law cannot untie may have to be cut by the sword. So it happened in the case of the United States. The Supreme Court tried its hand and failed. The only legislative authority which could have been invoked to settle the dispute by constitutional means was one consisting of a two-thirds majority of each House and a three-fourths majority of the States (acting either through Conventions or through their legislatures), such being the only authority capable of amending the Constitution. It was practically impossible to obtain a majority of three-fourths of the States for an amendment dealing with slavery or with State sovereignty. The resources of law being exhausted, the question of Sovereignty was tried _de facto_ by a war which lasted nearly four years, and in which about a million of men are supposed to have perished.