What happens if the authority of the National government is opposed, if, for instance, an execution levied in pursuance of a judgment of a Federal court is resisted, or Federal excisemen are impeded in the seizure of an illicit distillery ?

Supposing the United States marshal or other Federal officer to be unable to overcome the physical force opposed to him, he may summon all good citizens to assist him, just as the sheriff may summon the posse comitatus. If this appeal proves insufficient, he must call upon the President, who may either order national troops to his aid or may require the militia of the State in which resistance is offered to overcome that resistance. Inferior Federal officers are not entitled to make requisitions for State force. The common law principle that all citizens are bound to assist the ministers of the law holds good in America as in England, but it is as true in the one country as in the other, that what is everybody's business is nobody's business. Practically, the Federal authorities are not resisted in the more orderly States and more civilized districts. In such regions, however, as the mountains of Tennessee and North Carolina the inland revenue officials find it very hard to enforce the excise laws, because the country is wild, concealment is easy among the woods and rocks, and the population sides with the smugglers. And in some of the western States an injunction granted by a court, whether a Federal or a State court, is occasionally disregarded.1 Things were, of course, much worse before the War of Secession had established the authority of the central government on an immovable basis. Federal law did not prove an unquestioned protection either to persons who became in some districts unpopular from preaching Abolitionism, or to those Southern slavecatchers, who endeavoured, under the Fugitive Slave laws, to recapture in the northern States slaves who had escaped from their masters.2 Passion ran high, and great as is the respect for law, passion in America, as everywhere else in the world, will have its way.

If the duly constituted authorities of a State resist the laws

The attacks upon the Chinese which Federal authorities have had to check have mostly taken place not in States but in Territories, such as Washington Territory and Montana, where the direct power of the Federal Government is greater than in a State. See Chapter XLVII.

2 It was held that a State could not authorize its courts to enforce the Fugitive Slave laws. Being Federal statutes, they must be left to be enforced by the National government only. See Prigg v. Pennsylvania, 16 Pet. 539.

and orders of the National government, a more difficult question arises. This has several times happened.

In 1798 the legislatures of Kentucky and Virginia adopted resolutions whereby they declared that the Constitution was not a submission of the States to a general government, but a mere compact between the States vesting in such a government certain strictly specified powers, that the general government had not been made the final and exclusive judge of the extent of its own powers, and that when it went beyond the powers actually granted, its assumptions were unauthoritative and its acts invalid. They then went on to declare that certain statutes recently passed by Congress were void, and asked the other States to join in this pronouncement and to co-operate in securing the repeal of the statutes.1

In 1808 the legislatures of some of the New England States passed resolutions condemning the embargo which the National government had laid upon shipping by an Act of that year. The State judges, emboldened by these resolutions, "took an attitude consistently hostile to the embargo," holding it to be unconstitutional; and the Federal courts in New England "seldom succeeded in finding juries which would convict even for the most flagrant violation of its provisions." 2 In 1812 the governors of Massachusetts and Connecticut refused to allow the State militia to leave their State in pursuance to a requisition made by the President under the authority of an Act of Congress, alleging the requisition to be unconstitutional. In 1828-30 Georgia refused to obey an Act of Congress regarding the Cherokee Indians, and to respect the treaties which the United States had made with this tribe and the Creeks. The Georgian legislature passed and enforced Acts in contempt of Federal authority, and disregarded the orders of the Supreme court, President Jackson,

1 There have been endless discussions in America as to the true meaning and intent of these famous resolutions, a lucid account of which may be found in the article (by Mr. Alex. Johnston) "Kentucky Resolutions," in the American Cyclopædia of Political Science. The Kentucky resolutions were drafted by Jefferson, who however did not acknowledge his authorship till long afterwards, the Virginia resolutions by Madison,

Judge Cooley observes to me, "The most authoritative exponents of the States' Rights creed would probably have said that 'the nullification by the States of all unauthorized acts done under cover of the Constitution' intended by the Resolutions, was a nullification by constitutional means."

2 See article "Embargo" (by Mr. Alex. Johnston) in the American Cyclopædia of Political Science.

who had an old frontiersman's hatred to the Indians, declining to interfere.

Finally, in 1832, South Carolina, first in a State convention and then by her legislature, amplified while professing to repeat the claim of the Kentucky resolutions of 1798, declared the tariff imposed by Congress to be null and void as regarded herself, and proceeded to prepare for secession and war. In none

of these cases was the dispute fought out either in the courts or in the field;1 and the questions as to the right of a State to resist Federal authority, and as to the means whereby she could be coerced, were left over for future settlement. Settled they finally were by the Civil War of 1861-65, since which time the following doctrines may be deemed established:

No State has a right to declare an act of the Federal government invalid.2

No State has a right to secede from the Union.

The only authority competent to decide finally on the constitutionality of an act of Congress or of the national executive is the Federal judiciary.3

Any act of a State legislature or State executive conflicting with the Constitution, or with an act of the National government done under the Constitution, is really an act not of the State government, which cannot legally act against the Constitution, but of persons falsely assuming to act as such government, and is there

1 The Acts complained of by Kentucky and Virginia provoked a reaction which led to the overthrow of the Federalist party which had passed them. Of the most important among them, one was repealed and the other, the Sedition Act, expired in 1801 by effluxion of time. Jefferson, when he became President in that year, showed his disapproval of it by pardoning persons convicted under it. The Embargo was raised by Congress in consequence of the strong opposition of New England. In these cases, therefore, it may be thought that the victory substantially remained with the protesting States, while the resistance of South Carolina to the tariff was settled by a compromise.

2 Of course, as already observed, a State officer or a private citizen may disregard an act of the Federal government if he holds it unconstitutional. But he does so at his peril.

3 Any court, State or Federal, may decide on such a question in the first instance. But if the question be a purely political one, it may be incapable of being decided by any court whatever (see Chapter XXIV.), and in such cases the decision of the political departments (Congress or the President, as the case may be) of the Federal government is necessarily final, though, of course, liable to be reversed by a subsequent Congress or President. The cases which arose on the Reconstruction Acts, after the War of Secession, afford an illustration. The attempts made to bring these before the courts failed, and the acts were enforced. See Georgia v. Stanton, 6 Wall. p. 57.

fore ipso jure void.1 Those who disobey Federal authority on the ground of the commands of a State authority are therefore insurgents against the Union who must be coerced by its power. The coercion of such insurgents is directed not against the State but against them as individual though combined wrongdoers. A State cannot secede and cannot rebel. Similarly, it cannot be

coerced.

This view of the matter, which seems on the whole to be that taken by the Supreme court in the cases that arose after the Civil War, disposes, as has been well observed by Judge Hare,2 of the difficulty which President Buchanan felt (see his message of 3d December 1860) as to the coercion of a State by the Union. He argued that because the Constitution did not provide for such coercion, a proposal in the Convention of 1787 to authorize it having been ultimately dropped, it was legally impossible. The best answer to this contention is that such a provision would have been superfluous, because a State cannot legally act against the Constitution. All that is needed is the power, unquestionably contained in the Constitution (Art. iii. § 3), to subdue and punish individuals guilty of treason against the Union.3

Except in the cases which have been already specified, the National government has no right whatever of interfering either with a State as a commonwealth or with the individual citizens thereof, and may be lawfully resisted should it attempt to do so.

"What then?" the European reader may ask. "Is the National government without the power and the duty of correcting the social and political evils which it may find to exist in a particular State, and which a vast majority of the nation may condemn. Suppose widespread brigandage to exist in one of the States, endangering life and property. Suppose contracts to be habitually broken, and no redress to be obtainable in the State courts. Suppose the police to be in league with the assassins.

1 It may, however, happen that a State law is unconstitutional in part only, perhaps in some trifling details, and in such cases that part only will be invalid, and the rest of the law will be upheld. For instance, a criminal statute might be framed so as to apply retrospectively as well as prospectively. So far as retrospective it would be bad, but good for all future cases. (See Constit., Art. i. § 10, par. 1.)

2 Lectures on American Constitutional Law, p. 45.

3 Swiss practice allows the Federal government to coerce a disobedient canton. This is commonly done by quartering Federal troops in it at its expense till its government yields-a form of coercion which Swiss frugality dislikes, or by withholding its share of Federal grants.

Suppose the most mischievous laws to be enacted, laws, for instance, which recognize polygamy, leave homicide unpunished, drive away capital by imposing upon it an intolerable load of taxation. Is the nation obliged to stand by with folded arms while it sees a meritorious minority oppressed, the prosperity of the State ruined, a pernicious example set to other States? Is it to be debarred from using its supreme authority to rectify these mischiefs ?".

The answer is, Yes. Unless the legislation or administration of such a State transgresses some provision of the Federal Constitution (such as that forbidding ex post facto laws, or laws impairing the obligation of a contract), the National government not only ought not to interfere but cannot interfere. The State must go its own way, with whatever injury to private rights and common interests its folly or perversity may cause.

Such a case is not imaginary. In the Slave States before the war, although the negroes were not generally ill treated, many shocking laws were passed, and society was going from bad to worse. In parts of a few of the western, and especially of the south-western States at this moment, the roads and even the railways are infested by robbers, justice is uncertain and may be unattainable when popular sentiment does not support the law. Homicide often goes unpunished by the courts, though sometimes punished by Judge Lynch. So, too, in a few of these States statutes opposed to sound principles of legislation have been passed, and have brought manifold evils in their train. But the Federal government looks on unperturbed, with no remorse for neglected duty.

The obvious explanation of this phenomenon is that the large measure of independence left to the States under the Federal system makes it necessary to tolerate their misdoings in some directions. As a distinguished authority1 observes, "The Federal Constitution provided for the protection of contracts, and against those oppressions most likely to result from popular passion and demoralization; and if it had been proposed to go further and give to the Federal authority a power to intervene in still more extreme cases, the answer would probably have been that such cases were far less likely to arise than was the Federal power to intervene improperly under the pressure of party passion or policy, if its intervention were permitted. To have authorized 1 Judge Cooley, in a letter to the author.