that the powers reserved were vested in the government of the States. The word "government" is not used in the Constitution of the United States in the matter in question. It will be noticed, too, that the Union may be a multiple of units under the theory of Story and others, and that these units would be what Tucker asserts them to be, namely, local self-governing communities. On the other hand, it is unfair to say that the theory opposed to that of States' Rights holds the States as fractions of the Union or of the nation. They are components, not divisions; to say that they are divisions would be but to carry into the relation of State and nation that theory of fractional subdivision which the advocates of States' Rights assert within the State against local self-governing communities. The truth is that both the States and the nation are creatures of the people, and that the rights reserved to the people are not held necessarily through the States, for all theories admit that the source of power is the people. If this is true, and it is recognized that the people in their local governments are independent, then there are no States' Rights which are not theirs, and there is no obligation upon their part to find their guarantees exclusively, as was said in Commonwealth v. Plaisted,' in the State constitutions, nor are the State governments as Tucker says, free to regulate their own internal affairs to the exclusion of guarantees presented by the common law of the nation.

That the source of power is in the people' is a part of

1148 Mass. 375.

A distinction between a State and the people of a State is incomprehensible. Penhallow v. Doane's Administrator, 3 Dallas, 54, 93; The Cherokee Nation v. The State of Georgia, 5 Pet.

52, 53.

Tucker's argument. In Tucker's Blackstone, sec. 9, we find the following:

"Since according to the fundamental principles of both the Federal and State Constitutions and Government the supreme power (or jura summi imperii) resides in the people, it follows that it is the right of the people to make laws." 1

§ 78. THE SOURCE AND SANCTION OF LAW IN THE UNITED STATES.

"This, sir, is practical nullification," said Webster in his reply to Calhoun, in 1833. "And now, sir, against all these theories and opinions, I maintain:

"1. That the Constitution of the United States is not a league, confederacy, or compact between the people of several States in their sovereign capacities; but a government proper, founded on the adoption of the people, and creating direct relations between itself and individuals.

"2. That no State authority has power to dissolve these relations; that nothing can dissolve them but revolution; and that, consequently, there can be no such thing as secession without revolution.

"3. That there is a supreme law, consisting of the Constitution of the United States, and acts of Congress passed in pursuance of it, and treaties; and that, in cases not capable of assuming the character of a suit in law or equity, Congress must judge of, and finally interpret, this supreme law so often as it has occasion to pass acts of legislation; and in cases capable of assuming, and actually assuming, the character of a suit, the Supreme Court of the United States is the final interpreter.

"4. That an attempt by a State to abrogate, annul, or

1 See Constitution of Virginia, Art. VIII; Constitution of the United States, Art. I; Tucker's Blackstone, Vol. 1, p. 52, note. See also Von Holst, Constitutional Law of the United States, sec. 15 et seq.

nullify an act of Congress, or arrest its operation within her limits, on the ground that, in her opinion, such law is unconstitutional, is a direct usurpation on the just powers of the general government, and on the equal rights of the other States; a plain violation of the Constitution, and a proceeding essentially revolutionary in its character and tendency.

"The Constitution, sir, is not a contract, but the result of a contract; and meaning by contract no more than assent. Founded on consent, it is government proper. Adopted by the people of the United States, when adopted it has become a Constitution. The people have agreed to make a Constitution; but when made, that Constitution becomes what its name imports. It is no longer a mere agreement. Our laws, sir, have their foundation in the agreement or consent of the two houses of Congress. We say habitually, that one house proposes a bill and the other house agrees to it; but the result of this agreement is not a compact, but a law. The law, the statute, is not the agreement, but something created by the agreement; and something which when created, has a new character, and acts by its own authority. So the Constitution of the United States, founded in or on the consent of the people, may be said to rest on compact or consent; but it is not itself the compact, but its result. When the people agree to erect a government, and actually erect it, the thing is done, and the agreement is at an end. The compact is executed, and the end designed is attained. Henceforth, the fruit of the agreement exists, but the agreement itself is merged in its own accomplishment, since there can be no longer a subsisting agreement or compact to form a constitution or government, after that constitution or government has been actually formed and established.

"Mr. President, the nature of sovereignty or sovereign power has been extensively discussed by gentlemen on this occasion, as it naturally is when the origin of our govern

ment is debated. But I confess myself not entirely satisfied with the argument and illustration drawn from that topic. The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our governments are all limited. In Europe, sovereignty is of feudal origin, and imports no more than the state of the sovereign. It comprises his rights, duties, exemptions, prerogatives, and powers. But with us all power is with the people. They alone are sovereign and they erect what governments they please. None of these governments is sovereign, in the European sense of the word, all being restrained by written constitutions. It seems to me, therefore, that we only perplex ourselves when we attempt to explain the relations existing between the general government and the several State governments, according to those ideas of sovereignty which prevail under systems essentially different from our own."

Webster asserted that sovereignty such as was claimed for the States did not reside even in the national government.

Chief Justice Marshall replied to the contention that the powers of the general government are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion, as follows:

"It would be difficult to sustain this proposition. The convention which framed the Constitution was indeed elected by the State legislatures, but the instrument when it came from their hands was a mere proposition, without obligations or pretensions to it. The Constitution was reported to the then existing Congress and was by them submitted to a convention of delegates chosen in each State by the people thereof, under the recommendation of the legislatures, for their assent and ratification. Under this.

mode of proceeding, adopted by the Convention, by Congress, and by the States, the instrument was submitted to the people. From these conventions the Constitution derived its whole authority. The Government proceeds directly from the people. When the Constitution was thus adopted it was a complete obligation and bound the State sovereignties. . The government of the Union, then, is emphatically and truly a government of the people. In form and substance, it emanates from them. Its powers are granted by them and are to be exercised directly on them and for their benefit. If any one proposition could command the universal assent of mankind we might expect it would be this: 'That the government of the Union, though limited in its powers, is supreme within its sphere of action.'

"That power is called sovereign whose actions. are not subject to the control of any other power, so as to be annulled at the pleasure of any other human will." 2

"There is no such thing as a limitation upon sovereignty." "

3

When we are seeking the true source of law in the United States, it is clear that the sanction is not in the sovereignty of the governments of the States. Such power as gives sanction to the law resides, whether it be called sovereignty or self-government, or something else, in the people of the nation.

$79. THE SOURCE OF POSITIVE LAW IN THE United STATES IS A SELF-LIMITED POPULAR SOVEREIGN. The views held by Austin concerning political sovereignty, and the relation of the latter to positive law,

1 McCulloch v. Maryland, 4 Wheat. 405.

Grotius, De Jure Belli ac Pacis, Bk. I, chap. iii, sec. 7.

3 Essay on Sovereignty, Woodrow Wilson.